Navigating the 2024 Title IX Regulations: Key Changes Every School Should Know
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Key Updates to the 2024 Title IX Regulations
The 2024 Title IX regulations introduced new definitions and updated several existing ones. Below is an overview of the key changes:
New Definitions
(34 CFR Sec. 106.2)
Confidential employee: This is an employee whose communications are legally protected, meaning what you tell them may be kept confidential by law.
Hostile environment harassment: This refers to unwelcome behavior based on someone's sex that is so serious it stops someone from fully participating in their school's programs or activities.
Remedies: These are actions the school takes to help a person who was affected by sex discrimination regain equal access to education after it's been confirmed that discrimination occurred.
Student with a disability: This refers to a student who qualifies as having a disability under specific federal laws like Section 504 of the Rehabilitation Act or the IDEA.
Updated Definitions
(34 CFR Sec. 106.2)
Administrative law judge (ALJ): The 2024 regulations clarify that schools don’t need an ALJ to handle Title IX complaints.
Complainant: This now covers anyone filing a complaint about sex discrimination, which includes issues like sex stereotypes, sexual orientation, and gender identity, not just sexual harassment.
Complaint: Schools no longer need "actual knowledge" of sex discrimination to respond. Both oral and written complaints now trigger the school's duty to investigate.
Respondent: This term now refers to anyone accused of sex discrimination, not just sexual harassment.
Sex-based harassment: Previously called "sexual harassment," this now includes any harassment related to sex, such as stereotypes, characteristics, sexual orientation, or gender identity.
Expanded Definition of Sex Discrimination
(34 CFR Sec. 106.10)
The new rules clarify that discrimination based on sex includes:
Sex stereotypes
Sex characteristics
Pregnancy or related conditions
Sexual orientation
Gender identity
Changes to Remedial and Affirmative Action
(34 CFR Sec. 106.3)
Schools are no longer required to conduct a "self-evaluation" of their policies and practices to ensure compliance with Title IX. They also don’t need to keep records of these evaluations for three years, as this requirement was removed because it was seen as outdated.
Compliance with Federal Law
(34 CFR Sec. 106.6(b))
The 2024 regulations emphasize that Title IX takes precedence over any conflicting state or local laws. This means that even if a local law says something different, Title IX's rules come first.
Rights of Parents, Guardians, and Legal Representatives
(34 CFR Sec. 106.6(g))
Parents, guardians, or legal representatives can now file complaints or take action on behalf of students in Title IX cases. However, the definition of a "legal representative" is left to state laws and court decisions.
Title IX Coordinator Role
(34 CFR Sec. 106.8(a))
Schools still need to designate a Title IX coordinator, but if there is more than one, one person must oversee the entire Title IX process. Coordinators can also delegate tasks to others, if needed.
Nondiscrimination Policy
(34 CFR Sec. 106.8(b)(1))
Schools must not only post a notice stating they don’t discriminate based on sex, but they also need to publish and enforce policies that prohibit sex discrimination in any education program or activity they run.
Notice of Nondiscrimination
(34 CFR Sec. 106.8(c)(1))
Schools are now required to notify students, parents, and others about their nondiscrimination policy. This includes the following:
A statement saying the school doesn’t discriminate based on sex.
The Title IX coordinator's contact information.
Details on how to report sex discrimination or file a complaint.
Grievance Procedures
(34 CFR Sec. 106.45)
The new regulations require schools to adopt procedures for all sex discrimination complaints, not just sexual harassment. Some important aspects of the new grievance procedures include:
Setting reasonable timelines for each stage of the complaint process.
Protecting the privacy of the parties involved, as long as it doesn’t stop them from collecting evidence or preparing for the grievance process.
Excluding evidence that is protected by privilege (like medical records) or irrelevant questions about a complainant’s sexual history.
Application
(34 CFR Sec. 106.11)
The 2024 regulation expands an LEA’s obligation to address sex-based discrimination even if part of the conduct occurred outside the U.S. It removes the 2020 requirement limiting grievance procedures to instances within the U.S., recognizing the global reach of educational programs.
Education Programs or Activities
(34 CFR Sec. 106.31)
This provision prohibits LEAs from separating or treating students based on sex in ways that cause “more than de minimis harm.” This aligns with the student's gender identity and recognizes the possible protections for individuals with gender dysphoria under the ADA.
General Response to Sexual Harassment
(34 CFR Sec. 106.44(a))
Under the 2024 regulations, LEAs must respond whenever they have knowledge of conduct that may constitute sex discrimination, not just when they have “actual knowledge” (as per the 2020 regulation). LEAs must act "promptly and effectively" to ensure a timely response to potential sex-based discrimination incidents.
Title IX Coordinator Requirements
(34 CFR Sec. 106.44(f))
The 2024 regulations detail the Title IX coordinator’s duties, which include coordinating supportive measures for both complainants and respondents and initiating grievance procedures. The coordinator also has the authority to file complaints when necessary and ensure prompt measures are taken to prevent recurring discrimination.
Supportive Measures
(34 CFR Sec. 106.44(g))
The 2024 regulations expand the guidelines for supportive measures, which should protect parties during the grievance or informal resolution processes without being punitive. These measures should be reasonably available, protect safety, and ensure access to education. LEAs must also protect confidentiality and accommodate students with disabilities by consulting IEP or Section 504 teams when necessary.
Emergency Removal
(34 CFR Sec. 106.44(h))
LEAs are still permitted to remove a respondent from their program based on a safety risk following an individualized analysis. The new rules apply to broader sex discrimination allegations and now allow consideration of employee safety. Special provisions exist for students with disabilities, ensuring their rights under the IDEA or Section 504 are not infringed.
Barriers to Reporting
(34 CFR Sec. 106.44(b))
This provision introduces the obligation for the Title IX coordinator to monitor the LEA’s programs for barriers to reporting sex discrimination and to take steps to remove these barriers, particularly those faced by students with disabilities.
Notification Requirements
(34 CFR Sec. 106.44(c)(1))
This provision requires all elementary and secondary schools receiving federal funds to mandate that non-confidential employees report any information they have about conduct that may constitute sex discrimination to the Title IX coordinator. This ensures that an LEA responds to any potential sex discrimination, regardless of whether an official complaint has been filed.
Discretion to Offer Informal Resolution
(34 CFR Sec. 106.44(k))
Under this provision, an LEA may offer an informal resolution process to resolve allegations of sex discrimination, provided:
The offer is made before any formal determination of sex discrimination in a grievance process.
The complaint does not involve allegations that an employee engaged in sex-based harassment of a student.
The informal resolution does not violate federal, state, or local laws.
The LEA retains discretion to offer or decline informal resolution, especially when the alleged conduct presents a potential future risk of harm.
Grievance Procedures for Sex Discrimination
(34 CFR Sec. 106.45(a))
The 2024 regulations expand grievance procedures to all complaints of sex discrimination, not just formal sexual harassment complaints. LEAs must implement written grievance procedures to address all sex discrimination complaints in a prompt and equitable manner.
Basic Requirements for Grievance Procedures
(34 CFR Sec. 106.45(b))
Key requirements of the 2024 grievance procedures include:
Prompt timeframes for each stage of the grievance process, allowing reasonable extensions for good cause, with proper notice to the parties.
Privacy protections for parties and witnesses, ensuring privacy without limiting the ability to gather or present evidence or consult with advisors.
Exclusion of certain evidence, such as privileged information, medical records without consent, and evidence regarding the complainant's sexual history.
Notice of Allegations
(34 CFR Sec. 106.45(c))
The revised regulations require LEAs to provide all parties with a notice of allegations at the start of grievance procedures, regardless of whether a formal complaint was filed. The notice must include:
A description of the grievance procedures and informal resolution processes.
Details about the parties involved, the alleged conduct, dates, and locations.
A statement that retaliation is prohibited.
An assurance of equal access to relevant evidence.
If new allegations arise during the investigation, the LEA must notify the parties of these additional allegations.
Dismissal of a Complaint
(34 CFR Sec. 106.45(d))
The 2024 regulations modify the grounds for dismissal of sex discrimination complaints, specifically removing the restriction on dismissing complaints solely because the conduct occurred outside the U.S. An LEA may dismiss a complaint if:
It cannot identify the respondent after reasonable efforts.
The respondent is no longer affiliated with the LEA.
The complainant voluntarily withdraws the allegations, and the remaining claims would not constitute sex discrimination under Title IX.
The allegations, even if true, would not constitute sex discrimination under Title IX. In such cases, the LEA must make efforts to clarify the allegations with the complainant before dismissing the complaint.
Consolidation of Complaints
(34 CFR Sec. 106.45(e))
The 2024 regulations expand the scope for consolidating complaints. Unlike the 2020 regulations, which limited consolidation to sexual harassment claims, the new rules allow LEAs to consolidate complaints alleging any form of sex discrimination. The only condition is that the claims must arise from the same facts or circumstances.
Complaint Investigation
(34 CFR Sec. 106.45(f))
The investigation process retains many aspects from the 2020 regulations but introduces several key updates:
Types of evidence: The focus remains on relevant and not otherwise impermissible evidence. The 2024 regulations remove references to expert witnesses, which were included in the 2020 version.
Access to evidence: Although parties still have the right to review relevant evidence, LEAs are no longer required to provide electronic or hard copies of that evidence. Additionally, the 2024 regulations eliminate the requirement that parties have at least 10 days to respond to the evidence before the LEA completes the investigative report.
Parties' rights: The 2024 regulations omit the provisions from 2020 that prohibited LEAs from restricting either party's ability to discuss the allegations and that required allowing parties to have others present during the grievance process.
Determination on Whether Sex Discrimination Occurred
(34 CFR Sec. 106.45(h))
LEAs must still issue a written determination on whether sex discrimination occurred. However, the 2024 regulations streamline this requirement by eliminating the detailed content requirements from 2020. Now, the written determination needs only to include:
The rationale for the decision, and
The procedures and permissible bases for appeal, if applicable.
Appeals
(34 CFR Sec. 106.45(i))
The 2024 regulations still provide parties with the opportunity to appeal the determination. However, unlike the 2020 regulations, which listed specific reasons for appeals, the new provisions only require that the appeals process mirror that of comparable proceedings within the LEA. This change ensures consistency with other types of discrimination complaints.
Informal Resolution
(34 CFR Sec. 106.45(k))
The 2024 regulations grant LEAs greater flexibility regarding informal resolution processes. An LEA may now offer informal resolution at any time, as it deems appropriate, not just in response to the filing of a formal complaint. This grants LEAs the discretion to decide when informal resolution is suitable based on the specifics of the case.
Recordkeeping
(34 CFR Sec. 106.8(f))
LEAs must now maintain records for all sex discrimination complaints, not just those involving sexual harassment. This requirement includes keeping records of any notification the Title IX coordinator receives regarding conduct that may constitute sex discrimination. As with the 2020 regulations, these records must be retained for at least seven years.
Retaliation
(34 CFR Sec. 106.71)
The 2024 regulations explicitly require LEAs to prohibit peer retaliation in their education programs or activities. When an LEA receives information suggesting retaliation in violation of Title IX, it must initiate grievance procedures and respond accordingly. Notably, the 2024 regulations remove the "free speech" provision found in the 2020 regulations (34 CFR 106.71(b)(1)). This suggests that LEAs must address retaliatory conduct even if someone claims it is protected by the First Amendment, thereby reinforcing stronger protections against retaliation.
