Much Anticipated Title IX Rule Adds to Student Protections and School Responsibilities

The Department of Education (DOE) released its final rule on April 19 for amendments to Title IX of the Education Amendments of 1972. The amendments, which focus on Title IX’s sexual harassment grievance procedure, have significant impact on requirements for preventing and responding to sex-based discrimination in education. Effective Aug. 1, 2024, here’s what schools need to know.

Title IX bars sex discrimination in any education program or activity receiving federal financial aid. The originally proposed amendments to the sexual grievance procedure, released in June 2022, received over 240,000 comments. Prior to the finalization, schools were expected to follow the Sexual Harassment Guidance Procedure rules carried out under the Trump Administration in 2020.

The DOE lauded the celebration of Title IX’s 50th anniversary in its announcement. The department stated the new rule aimed to “restore vital protections for students in our nation’s schools.”

Some of the highlights of the final rule include:

• • Expanding protection, in line with the 2019 U.S. Supreme Court decision in Bostock v. Clayton County and the Pregnant Workers Fairness Act, to include sexual discrimination as well as discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity
  • Adding requirements for schools to swiftly respond to not just formal Title IX complaints, but also informal ones
  • Lowering the standard of establishing a hostile environment by replacing the “severe, pervasive, and objectively offensive” definition with the “severe or pervasive” definition
  • Expanding when a particular education program or activity is subject to Title IX to include settings where the conduct is subject to the school’s disciplinary power
  • Requiring schools to address conduct even if the sex-based harassment contributing to the hostile environment occurred outside the schools’ education program or activity or outside the U.S.

In addition, under the new rule, schools must:

• • Train employees on the school’s obligation to address sex discrimination and to provide information for the Title IX Coordinator
  • Conduct reliable and impartial investigations of all complaints using a fair, transparent and reliable process that includes trained, unbiased decision-makers who evaluate all relevant and not otherwise impermissible evidence
  • Include a presumption in their grievance procedure that the respondent is not responsible for the alleged sex discrimination until the school concludes the process and makes a determination
  • Provide parties with equal opportunity to present and access relevant evidence and reasonable opportunity to respond to that evidence
  • For post-secondary institutions, include one of these options in the process:
    • Questioning by the investigator or decision-maker during individual meetings with a party or witness (including questions proposed by each party)
    • Questioning by the decision-maker during a live hearing (including questions proposed by each party and asked by the decision-maker or the party’s advisor)
  • Use the “preponderance of the evidence” standard unless the school uses the “clear and convincing evidence” standard in all other comparable proceedings
  • Protect students that complain or participate in the Title IX process from intimidation, threats, coercion and discrimination from the school and other students
  • Maintain student privacy by not disclosing personal and identifiable information

The finalization did not cover another proposed amendment covering gender identity in athletics. Phelps will monitor this amendment’s progress and provide updates. Please contact Rebecca Sha or any member of Phelps’ Education team if you have questions or need advice or guidance.