U.S. Department of Education Unveils a New Landscape for Addressing Sex Discrimination in Schools

On April 19, 2024, the U.S. Department of Education released its final changes to the Title IX regulations. The new rules will go into effect on August 1, 2024. “Title IX” refers to Title IX of the Education Amendments of 1972, a federal law that prohibits discrimination on the basis of sex in education programs and activities that receive federal funds.

These new regulations in many ways are modifications to the 2020 Title IX regulations, which were the first regulations to mandate that schools adopt a stringent grievance procedure for addressing complaints of sexual harassment reported by students and staff. The new regulations expand the types of complaints for which a grievance procedure must be followed but insert flexibility into that procedure. Some (though by no means all) of the more notable changes include:

• A grievance procedure must be used to address complaints of all forms of sex discrimination, which could include issues of access to curriculum, different treatment based on sex, and sexual harassment (now called “sex-based harassment”). Complaints may be made orally or in writing. While schools currently respond to all types of complaints in a variety of ways, the number of complaints that must be handled through the Title IX grievance process will likely increase significantly as a result of this change.
• The definition of “sex-based harassment” now includes any offensive, unwelcome conduct based on sex that is so severe or pervasive that it deprives a person of access to educational benefits. This definition covers a great deal of conduct that was not considered “sexual harassment” under the 2020 regulations.
• “Sex discrimination” explicitly includes discrimination based on sexual orientation, gender identity, as well as pregnancy and related conditions.
• In appropriate circumstances, schools may address allegations of sex discrimination through informal resolutions or by putting in place supportive measures unless the discrimination is sex-based harassment of a student by an employee.
• When investigating a complaint of sex discrimination, the employee assigned to investigate the allegations may also make the initial decision about what has occurred. (Under the 2020 regulations, the decision-maker could not be the investigator). This change will enable principals to perform their traditional function of investigating and addressing misconduct on K-12 campuses.
• K-12 schools no longer face mandatory waiting periods to make decisions, and some of the written notice requirements have been eliminated, thereby enabling a faster response to allegations of sex discrimination.
• Other changes were made to the requirements for public notices, the obligations of the Title IX Coordinator, the use and retention of records, and the accommodations and treatment required to address pregnancy and related conditions.

The changes promise that school administrators and boards of education will have significant work to do this summer to ensure compliance by August 1, 2024.

For assistance with these issues, please contact a member of the Brooks Pierce Education Law Team.