- The U.S. Department of Education has issued final Title IX regulations governing sex discrimination complaints regarding educational institutions.
- The regulations clarify conditions, expand Title IX's geographic scope, modify the investigation process, and include sexual orientation, gender identity, and pregnancy/lactation issues within Title IX's scope of protection.
- Institutions have until August 1, 2024 to update their policies and train their staff on the new Title IX requirements.
On April 19, 2024, the U.S. Department of Education published an updated final rule implementing Title IX of the Education Amendments of 1972 (“Title IX”), 20 USC §1681. onwardswill manage sex discrimination complaints for conduct occurring after August 1, 2024.1 Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in educational programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities that receive federal funds must comply with Title IX. The new regulations include significant changes affecting educational institutions compared to the previous Title IX regulations issued in 2020, including clarification of defined terminology, geographic scope These include expansions, changes to the research process, and inclusion of sexual orientation, gender identity, and pregnancy/lactation. Protection under Title IX. This insight identifies some of the key updates in the new final regulation.
Changed the criteria for “sexual harassment” to “severe or pervasive”
One important definition that has been clarified is that of sexual harassment under 34 CFR Part 106, Section 106.2 of the Title IX Regulations. The final rule explicitly clarifies that sex-based harassment is a form of sex discrimination and includes both sexual harassment and sexual harassment. This includes conduct of a sexual nature, as well as other forms of harassment that are not necessarily “sexual” but are based on a person's gender, such as pregnancy harassment, gender identity, or gender-based stereotypes. .
Harassing conduct prohibited by Title IX pursuant to the 2020 final rule includes: (1) give something in return Harassment by school staff. (2) any instances of sexual assault, dating violence, domestic violence, or stalking; (3) very serious, pervasive, and unwelcome conduct; and It is objectively offensive in that it denies a person equal access to education (aka a hostile educational environment). The standard for proving harassment under this third ground was previously based on the standard set by the Supreme Court. Davis v. Monroe County Board of Education (1999). The current final regulations require that the conduct in question be “(1) unwelcome, (2) gender-based, (3) subjectively and objectively offensive, and (4) extremely serious.” are doing. or (5) There is a widespread belief that it limits or negates the person's ability to participate in or benefit from the recipient's educational programs or activities. ”
Elimination of geographic limitations on Title IX liability
Section 106.11 of the final rule redefines the geographic scope of Title IX to cover conduct that occurs off-campus and even outside the United States. In this regard, the final rule states that Title IX recipients should not focus on whether the alleged misconduct occurred on or off campus, but rather, “rather, the recipient must The focus should be on whether the defendant has disciplinary powers for the defendant's conduct in the circumstances.” There is no distinction between discrimination that occurs in-person and discrimination that occurs online, and the final rule requires schools to consider conduct that occurs outside of an educational program or activity or outside the United States if: They are authorized to exercise their powers under the law. This behavior contributes to what is described as a hostile educational environment. Nevertheless, educational institutions are not required to independently respond to conduct that occurs outside of their educational programs or activities.
“Sex discrimination” now includes SUnique orientation and gender identity
Section 106.10 of the final regulations explicitly includes sexual orientation and gender identity in the definition of what constitutes discrimination “based on sex.” The reason for this explicit mention was to maintain consistency with Title VII following the Supreme Court's decision. Bostock v. Clanton County (2019), and the Department of Education is concerned that a narrower interpretation of sex “could exclude some individuals from the protections of Title IX that appropriately apply to all students.” The overwhelming number of comments that raised this concern and regarding this particular section of the proposed rule were the safety and mental health of LGBTQI+ students and employees. Although many opponents of this inclusion cited religious beliefs and potential conflicts with state and local laws, the Department has maintained that Article IX It emphasized that the ed. does not apply to institutions controlled by religious groups. Title IX also does not dictate a particular curriculum. However, other eligible recipients are not relieved of the obligation to comply with these regulations, even if they are in conflict with state or local law.
Clarification of pregnancy-related protections and inclusion of lactation issues
The final rule allows Title IX recipients to protect students, employees, and applicants from discrimination based on pregnancy, childbirth, abortion, lactation, related medical conditions, or recovery, including by providing students with reasonable modifications. (§ 106.2). Section 106.40(b)'s requirement to provide a Title IX Coordinator's contact information to a pregnant student), appropriate employee break times for breastfeeding (§ 106.57(e)(1)), and both Clean, private lactation spaces for students and employees (§§ 106.40(b)(3)(v) and 106.57(e)(2)). Sections 106.40(b)(3)(v) and 106.57(e) of the final rule require Title IX recipients to ensure that students and employees have access to lactation spaces. “The nursing space must be a clean non-toilet space” that may be used “for expressing breast milk or feeding as needed.” In view of flexibility, the Ministry of Education declined to adopt additional specific requirements regarding the size and location of lactation spaces. The Department of Education notes that new federal laws, such as the Pregnant Worker Fairness Act (PWFA) and the Pump Act, similarly address breastfeeding in the workplace and may apply in addition to Title IX obligations. did. Recipients can comply by allowing students to access an employee's existing lactation space, so schools are not required to provide a separate lactation space exclusively for students. Additionally, the inclusion of “breastfeeding” is intended to allow already authorized students and employees to bring their children to educational programs and activities at their host institution (for exampleUsing the lactation space for breastfeeding instead of pumping (through , on-site child care, recipient's visitor policy, or state or local law). Similar to the PWFA provisions, the final rule requires beneficiaries to require students to submit supporting documentation to verify the need for lactation for reasonable modification or to verify access to a lactation space. It stipulates that it must not be done.
increased Flexibility for investigation and resolution
The final rule also allows for greater discretion and flexibility in investigating and resolving Title IX complaints to account for differences in school size, student population, and administrative structure. For example, the final rule allows schools to return to a single-investigator model in which the decision-maker is the same person as the Title IX coordinator or investigator, which was prohibited in the 2020 rule. The final rule also no longer requires live hearings and cross-examinations at the postsecondary level. Section 106.46(g) provides:[a] Secondary education institutions' sexual harassment complaint procedures may, but are not required to, provide for live hearings. In addition, § 106.46(f) provides that an institution of higher education may (1) be questioned by an investigator or decision maker during a separate conference in the absence of a live hearing, or (2) be questioned by a decision maker at a live hearing. It stipulates that any interrogation must be permitted. Consistent with the 2020 amendments, the final rule does not require live public hearings at the elementary and middle school levels.
Additionally, as described in Section 106.44(k), when a school receives a complaint of sex discrimination or has information regarding conduct that could reasonably constitute sex discrimination (the complaint (regardless of whether a dispute has been raised), we may provide an informal resolution process. Informal resolution processes are not available in cases involving allegations that an employee sexually harassed an elementary or middle school student or where such a process could violate the law. Previously, Section 106.45(b)(9) of the 2020 Amendments allowed informal resolution only when a formal complaint alleging sexual harassment was filed.
Responding to allegations of sex discrimination
Section 106.44(a)(1) of the new regulations provides that a recipient who learns of conduct that “may reasonably constitute sex discrimination” in an educational program or activity “must respond promptly and effectively.” We are asking for what must be done. The 2020 amendments required § 106.44(a) to “respond promptly in a manner that is not intentionally indifferent” only if the recipient has “actual knowledge” of the sexual harassment allegation. . The Department of Education said the 2020 amendments “do not require recipients to fully address the effects of sexual harassment in educational settings, and further do not impose sufficient obligations to address potential sex discrimination.” I agree with some commenters who said, “We haven't reached that point yet.” However, the Department has made clear that section 106.44(a) is not intended to impose a strict standard of liability on recipients for sex discrimination that occurs, even if they had no knowledge of the conduct. (for example., if the act occurred without the knowledge of school personnel).
Changing the definition of retaliation
Finally, the new regulations include several notable changes to the definition of retaliation in Section 106.2, which requires an agency to require an employee to be a witness to a Title IX investigation, proceeding, or proceeding. We make it clear that there is nothing prohibiting you from requesting participation or other assistance. Hearing. In doing so, the Department stated that granting school employees the right under Title IX to refuse to participate in the Title IX grievance process is “contrary to the purpose of Title IX and other obligations under the final rule.” I agreed with that opinion. This is consistent with the fact that nonparticipation is not considered a protected activity under Title VII, and employers should have consistent Title VII and Title IX policies requiring employees to participate as witnesses in investigations. can do. Additionally, Section 106.2 clarifies that retaliation includes peer retaliation by other students.
Institutions must update their policies and train their staff on the new Title IX requirements by August 1, 2024, the effective date of the final regulations. Universities will therefore have just over three months to unpack his more than 1,500 pages of guidance and implement the changes that accompany the new regulations. The Department of Education shared resources to help schools develop policies, investigation notices, and grievance procedures to help them quickly become compliant. Additionally, while much attention has been focused on Title IX's impact on athletics, the new regulations do not address sex discrimination in athletics, and a separate rulemaking process is currently underway and will be scheduled for fall 2024. It is scheduled for.
footnote
1 Available at https://www2.ed.gov/about/offices/list/ocr/docs/t9-unofficial-final-rule-2024.pdf. Additionally, the U.S. Department of Education has issued a press release regarding the new regulations, available at https://www.ed.gov/news/press-releases/us-Department-education-releases-final-title-ix-regulations -providing-vital-protections-against-sex-discrimination), provides links to the Department's fact sheets and summaries of key provisions of the final regulations.