Biden Administration Publishes Final Version of Title IX Regulations

Background
Title IX of the Education Amendments of 1972 provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In 2011, the Obama administration issued a “Dear Colleague” letter regarding sexual violence, which established specific requirements that schools that are recipients of federal funding must meet to address sexual violence between students and sexual harassment within an educational program or activity. The Obama administration later issued a 2014 Questions and Answers (“Q&A”) document and a 2015 guidance document on Title IX. In 2017 the Trump administration withdrew the 2011 letter and 2014 Q&A and proceeded to issue formal Title IX regulations in 2020. The 2020 Title IX regulations limited the reach of Title IX by reducing jurisdiction over off-campus conduct and also increased protections for respondents in Title IX proceedings.

On July 12, 2022, the Biden administration published a Notice of Proposed Rulemaking with proposed changes to the regulations effectuating Title IX. There were almost 250,000 public comments on the proposed regulations. The final regulations were released on April 19, 2024. The effective date is August 1, 2024, giving educational institutions the summer to implement the New Rules.

Expanded Title IX Scope
The New Rules expand the definition of sex-based harassment to include sexual harassment as well as harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. 34 C.F.R. §§ 106.2, 106.10.

The New Rules also expand the definition of hostile environment harassment to “unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” 34 C.F.R. § 106.2. In contrast, the 2020 regulations defined hostile environmental harassment to include conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Grievance Procedures
The New Rules require certain grievance procedures but give schools more flexibility and discretion.

They include grievance procedures for proceedings involving all forms of sex discrimination, not just formal complaints of sexual harassment. 34 C.F.R. § 106.45.

There are additional requirements for sex-based harassment complaints from postsecondary students. 34 C.F.R. § 106.46.

Some of the notable changes to the grievance procedure requirements include:

• A formal written complaint is not required to initiate the grievance procedures.
• The single investigator model is permissible, meaning the decisionmaker may be the same person as the Title IX coordinator or investigator.
• A live hearing is permitted, but not required.
• A school must have a process that allows the decisionmaker to question parties and witnesses to adequately assess credibility when credibility is in dispute and relevant. Cross-examination by the parties is not required but is permitted.
• A school must use the preponderance of the evidence standard, unless it uses the clear and convincing evidence standard in all other comparable proceedings, in which case that standard may (but is not required to) be used.

Addressing Off-Campus Activity
The New Rules clarify that Title IX applies to conduct that occurs in any building owned or controlled by a student organization that is officially recognized by a postsecondary institution, as well as any conduct that is subject to the institution’s disciplinary authority. 34 C.F.R. § 106.11.

Further, an institution must address a sex-based hostile environment in its education program or activity in the United States, even if some of the conduct alleged to be contributing to the hostile environment occurred outside of the education program or activity or outside of the United States. 34 C.F.R. § 106.11.

Clarification on Retaliation
The New Rules require institutions to prohibit retaliation, including peer retaliation, and adds a definition of both retaliation and peer retaliation. 34 C.F.R. §§ 106.2, 106.71. An institution must respond to complaints involving conduct that may involve retaliation using the same procedures as for other forms of sex discrimination.

Reporting and Response Obligations
The New Rules require a recipient with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity to respond promptly and effectively. 34 C.F.R. § 106.44(a). The 2020 regulations required a recipient to respond only when they had “actual knowledge” of allegations of “sexual harassment” and required only that the recipient respond in a manner that is not deliberately indifferent.

The New Rules also create certain reporting requirements for employees (34 C.F.R. § 106.44(c)):

• A non-confidential employee who has authority to take corrective action or who has responsibility for administrative leadership, teaching, or advising must notify the Title IX coordinator.
• All other non-confidential employees must notify the Title IX coordinator or provide the Title IX coordinator’s contact information and information about how to make a complaint of sex discrimination to any individual who provides the employee with information about conduct that reasonably may constitute sex discrimination.

The New Rules also require that schools provide training on when employees must notify a Title IX coordinator of conduct, as well as how students can get confidential assistance or make a complaint that initiates grievance procedures. 34 C.F.R. § 106.8(d).

Specific Protected Characteristics
The New Rules clarify the protections under Title IX for individuals who are pregnant. They include a definition of “pregnancy or related conditions” and require reasonable modifications, as well lactation space for students. 34 C.F.R. §§ 106.2, 106.40. The New Rules also clarify protections for parents by including a definition of “parental status” to explicitly include adoptive parents, stepparents, or legal guardians. 34 C.F.R. § 106.2.

The New Rules make clear that Title IX prohibits discrimination based on sexual orientation, gender identity, and sex characteristics. 34 C.F.R. § 106.10. The Department of Education is promulgating separate rules regarding participation on athletic teams. The final rule has not yet been issued.