Title IX, a federal law that has prohibited discrimination on the basis of sex in education programs since 1972, has frequently made headlines since 2020. In mid-2020, the U.S. Department of Education (“Department”) under the Trump administration overhauled the Title IX regulations, adding many new requirements for schools. The 2020 regulations have required schools to adopt detailed grievance procedures for handling formal complaints of sexual harassment, implemented new training requirements for members of each school’s Title IX team, and made other changes.

Nearly two years ago, on the 50th anniversary of Title IX, the Department under the Biden administration announced its proposed changes by releasing a Notice of Proposed Rulemaking. The Department received over 235,000 comments during the 60-day public comment period. Schools have been waiting since then for the new regulations to be finalized, and the Department released its Final Rule Friday, April 19, 2024.   

The new regulations will go into effect on August 1, 2024—ahead of the first day of the 2024-25 school year for most schools. As outlined in more detail below, they broaden the scope of Title IX and will require all schools to change their approach in some ways. But the general framework remains the same, and many of the changes will be familiar for California schools already subject to similar state laws in the Sex Equity in Education Act. In fact, on April 25, 2024, California’s Attorney General along with 16 other states moved to dismiss a coalition lawsuit they had filed against the Department challenging the current regulations. In the announcement of the dismissal, Attorney General Rob Bonta said that the Department’s new Final Rule “restores strong protections against sexual harassment and assault, and provides critical protection against discrimination for LGBTQ+ and pregnant, and parenting students,” complementing California’s state law protections for those students. 

As background, Title IX prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. Examples of the types of discrimination that are covered under Title IX include sexual harassment and sexual assault, failure to provide equal athletic opportunity, sex-based discrimination in a school’s courses and programs, and discrimination based on pregnancy.

Below is a summary of relevant changes to the Title IX regulations for TK-12 schools, many of which will need to be incorporated into each school’s revised grievance procedures:

Clarity in Defining Discrimination Covered by Title IX

• In mid-2021, the Department clarified in guidance that Title IX applies to discrimination based on sexual orientation and gender identity. The Final Rule confirms this, amending the regulations to confirm that discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. (34 C.F.R. 106.10.) California public schools have already been required to prohibit discrimination on the basis of sexual orientation, gender identity, and gender expression. (See, e.g., Ed. Code, §§ 200, 220).

New Parameters for Defining Sex-Based Harassment

• Under the current regulations, “sexual harassment” covered by Title IX includes unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the education program or activity. (34 C.F.R. § 106.30.)
• Under the new Final Rule, the term “sexual harassment” is replaced with the term “sex-based harassment.” Sex-based harassment includes “hostile environment harassment,” which uses some of the same terms from the previous definition but is now broader. Sex-based harassment will now include “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 education program or activity (i.e., creates a hostile environment).” There are factors for schools to consider on a case-by-case basis to determine if this standard is met. (34 C.F.R. § 106.2.)

Protections for Pregnancy

• Title IX has long prohibited schools from treating students differently based on pregnancy and parental status. (See 34 C.F.R. § 106.40). The new Final Rule goes further to expressly require schools to take actions ensuring equal access for pregnant and parenting students and staff, such as class breaks, lactation space, intermittent absences to attend medical appointments, and other supports based on individualized needs. Schools are also required to inform pregnant and parenting student of their rights related to pregnancy or related conditions. (34 C.F.R. §§ 106.40, 106.57.) This will be familiar to California public schools, which already provide a notice of pregnant/parenting pupil rights pursuant to Education Code section 222.5. Schools’ notices can be updated to meet both the California law and new Title IX requirements.

Expanded Scope of Complaints Subject to Grievance Procedures

• Under the current regulations, a school is only required to use its grievance procedures to address formal complaints of sexual harassment under Title IX. (34 C.F.R. § 106.45(b).) Also, a school is only required to address sexual harassment where the school exercised substantial control over both the respondent (i.e., the individual being accused) and the context in which the conduct occurs. (34 C.F.R. § 106.44(a).)
• Under the new Final Rule, a school must offer its grievance procedures to address all complaints of discrimination on the basis of sex, including, but not limited to, complaints about “sex-based harassment,” failure to provide equal athletic opportunity, sex discrimination in a school’s courses and programs, and discrimination based on pregnancy. (34 C.F.R. § 106.45(a)(1).) Also, a school must offer Title IX grievance procedures to address discriminatory conduct on the basis of sex that is otherwise subject to the school’s disciplinary authority (i.e., if the conduct is covered by the school’s discipline policies, then it is covered by Title IX). (34 C.F.R. § 106.11.)
• In short, schools previously saw some types of sex-based discrimination complaints covered by Title IX, some covered by similar but not identical state laws, and some covered by the school’s own policies. Starting August 1, 2024, the Title IX grievance procedures will apply to all complaints of discrimination on the basis of sex in the school’s education programs or activities.

Change to Overarching Standard for a School’s Response

• Under the current regulations, when a school has “actual knowledge” of sexual harassment in its education program or activity, the school must respond promptly in a manner that is not deliberately indifferent. A school is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. (34 C.F.R. § 106.44(a).)
• Under the new Final Rule, this standard is changing. When a school has “knowledge” of conduct that reasonably may constitute sex discrimination in its education program or activity, the school must respond “promptly and effectively.” (34 C.F.R. § 106.44(a).) To help ensure the school meets this new standard, the Title IX Coordinator will be required to identify any barriers to reporting discrimination at the school and take steps reasonably calculated to address them. (34 C.F.R. § 106.44(b).)

Complaints by Former Students/Employees

• Under the current regulations, a school is only required to accept a complaint from a former student or employee if they are attempting to participate in the school’s education program or activity at the time they file the formal complaint. (34 C.F.R. § 106.30.)
• Under the new Final Rule, the relevant inquiry is whether the complainant was a student or employee at the time of the alleged discrimination. (34 C.F.R. § 106.30.) This means former students and employees can file complaints under a school’s grievance procedures even if they have already left the school and have no intention to return.

Complaints May be Made Orally or in Writing

• Under the current regulations, a formal complaint initiating the grievance procedures must be in writing and signed by the complainant. (34 C.F.R. § 106.30.)
• Under the new Final Rule, a complaint initiating the grievance procedures can be made orally or in writing, as long as the complaint can be objectively understood as a request for the school to investigate. (34 C.F.R. § 106.30.)

Different Training Requirements

• Under the current regulations, only members of the Title IX team (i.e., Title IX coordinators, investigators, decisionmakers, and any person who facilitates an informal resolution process) are required to receive training on Title IX. (34 C.F.R. § 106.45(b)(1)(iii).) Practically speaking, since a school is deemed to have “actual knowledge” of sexual harassment when any employee becomes aware of it, many schools already incorporate some level of Title IX training into their professional development for all staff.
• Under the new Final Rule, all employees must receive training on (1) the general obligations under Title IX, (2) the scope of conduct that constitutes sex discrimination under Title IX (including sex-based harassment), and (3) the requirement to notify the Title IX Coordinator when they have knowledge about conduct that reasonably may constitute sex discrimination under Title IX. The goal is that all employees need to know enough about Title IX to appropriately route Title IX complaints so they may be addressed promptly and effectively. In addition, all members of the Title IX team (e.g., investigators, decisionmakers, and other persons responsible for implementing the grievance procedures) must receive a fulsome training (as they do now) on the school’s grievance procedures, among other topics. (34 C.F.R. § 106.8(d).)

Smaller Title IX Team for Investigations

• Under the current regulations, the Investigator and Decisionmaker in a Title IX investigation cannot be the same person. (34 C.F.R. § 106.45(b)(7).)
• Under the new Final Rule, the Investigator and the Decisionmaker in a Title IX investigation can be the same person, meaning the individual who conducts the witness interviews and gathers all of the evidence may make the final decision. (34 C.F.R. § 106.45(b)(2).) For California schools, these changes make the Title IX process look a bit more similar to the uniform complaint procedures that schools are familiar with. (See 5 C.C.R. § 4631(a).)

Somewhat Streamlined Grievance Procedures

• Under the current regulations, the parties must be given at least ten days to respond to the evidence gathered by the investigator, and another ten days to respond to the investigative report. (34 C.F.R. § 106.45(b)(5)(vi), (vii).) Also, a school’s final written decision must include a description of the procedural steps taken in response to the formal complaint, findings of fact, conclusions, rationale for each allegation, and procedures and bases for appeal, among other information. (34 C.F.R. § 106.45(b)(7)(ii).)
• Under the new Final Rule, the parties must be provided a “reasonable opportunity” to access and respond to the relevant evidence, but a school is not required to issue an investigative report and there is no minimum timeline for the response. (34 C.F.R. § 106.45(f)(4).) Also, a school’s final decision must be in writing and include only the final determination, rationale, and procedures and bases for appeal. (34 C.F.R. § 106.45(h)(2).)

The Department’s Final Rule spans 1,577 pages, so the above list is not intended to be exhaustive. Our Education attorneys are continuing to review the materials from the Department, and we intend to provide a number of training opportunities for schools in the coming months.

By August 1, 2024, California TK-12 schools should plan to update their Title IX grievance procedures, update the Title IX information in student and employee handbooks and on the website, and ensure that staff are trained as appropriate. Procopio attorneys Greta A. Proctor and Merrick A. Wadsworth are ready to assist schools with compliance ahead of this regulatory deadline.