On April 19, 2024, nearly two years after its July 2022 release of proposed amendments to the 2020 Title IX regulations, the U.S. Department of Education (ED) issued final amendments to the Title IX regulations, 34 C.F.R. 106.1 et seq. (2024 Amendments). The 2024 Amendments take effect August 1, 2024, and obligate Title IX-covered entities to apply the requirements set forth in the 2024 Amendments to complaints of sex discrimination involving alleged misconduct that occurs on or after that date. In conjunction with its issuance of the 2024 Amendments, ED also provided Title IX-covered institutions with various resources, including a Summary of Key Provisions, a Fact Sheet, and a Resource for Drafting Nondiscrimination Policies, Notices of Nondiscrimination, and Grievance Procedures that comply with the 2024 Amendments.  The official version of the 2024 Amendments was published in the Federal Register on April 29, 2024. 

The 2024 Amendments include many key changes to the 2020 Title IX regulations. In addition to expanding the applicability of Title IX to all forms of sex-based misconduct, the 2024 Amendments also afford institutions greater latitude in designing a grievance process that aligns with their resources. In particular, for institutions not subject to heightened standards under other laws, the 2024 Amendments allow for the reintroduction of a single-investigator model with enhanced due process protections in lieu of a live hearing with cross examination; and in turn, institutions have options in deciding whether to maintain the adjudication procedures established by the 2020 Title IX regulations or to return to an investigation and decision-making model that more closely mirrors a human resources approach to resolving complaints subject to the specific requirements provided in the 2024 Amendments. While flexibility is generally positive, in the context of Title IX, it likely will mean more involvement by campus leaders and other constituents in implementing policy changes, more time spent by Title IX Coordinators and administrators corralling differing perspectives, and more room for scrutiny by internal and external constituents. As a summary of the key changes to existing Title IX regulations, the 2024 Amendments:

• Clarify that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity;
• Broaden the definition of hostile environment harassment to mean 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 the ability to participate in or benefit from an education program or activity;
• Expand the application of Title IX to cover sex discrimination occurring in an education program or activity that is subject to the disciplinary authority of a Title IX-covered entity even if it occurs outside the United States;
• Remove the limitation that a Title IX-covered entity must respond to sex discrimination only when it has “actual knowledge” of alleged misconduct;
• Expand the obligations of non-confidential employees to notify the Title IX Coordinator of possible sex discrimination or provide information about how to make a complaint;
• Obligate Title IX-covered entities to provide clear information and training to personnel regarding their responsibilities;
• Require that the Title IX Coordinator undertake specific actions upon notification of conduct that reasonably may constitute sex discrimination;
• Necessitate a fact-specific determination involving eight enumerated factors to identify whether conduct presents an imminent and serious threat to the health or safety of a complainant or other person or prevents the Title IX-covered entity from ensuring equal access to its education program or activity such that the Title IX Coordinator may initiate a complaint;
• Permit a Title IX-covered entity to offer an informal resolution process, except in situations in which an employee allegedly engaged in sex-based harassment of an elementary or secondary school student or such process would otherwise conflict with applicable law;
• Eliminate the live hearing requirement and allow for a single-investigator model with enhanced due process protections;
• Expand protections against discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, and recovery, including reasonable modifications for students, break time for employees for lactation, and clean, private lactation space for students and employees; and
• Prohibit a Title IX-covered entity from separating or treating any person differently based on sex in a manner that subjects them to more than de minimis harm, including practices that prevent a student from participating in an education program or activity consistent with their gender identity.    

With the countdown to compliance underway, Title IX Coordinators and administrators should promptly review the 2024 Amendments and related resources provided by ED; determine the internal action steps and timeline (e.g., committee involvement, board input, approval process) that institutional procedures may require to modify their existing Title IX programs and how this can be achieved by the August 1 deadline; and begin the process of developing updates to Title IX policies, procedures, and training that comply with the 2024 Amendments for the start of the new academic year.  Spilman attorneys stand ready to assist our clients with these steps.