What Schools Need to do by August 1 to Ensure Compliance

The “at some point in the future” date has finally arrived – Title IX regulations have been updated and released. On April 19, 2024, the U.S. Department of Education (the “DOE”) released its Final Title IX Regulations (the “Final Regulations”) relating to the treatment of allegations of sex discrimination and harassment. Title IX Regulations apply to K-12 schools, universities, colleges, vocational, and other educational institutions that receive federal funding. While not necessarily representing a sea change in how school districts will be required to operate, the nuances of the Final Regulations will require time to sort through. Unfortunately, schools are not given much time to methodically review policies and practices, not to mention train staff, to implement the Final Regulations – schools have until August 1, 2024, to ensure compliance.*

The unofficial version of the Final Regulations is available here. The DOE also released a fact sheet, summary of the major provisions of the Final Regulations, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.

The overview and commentary below are intended as a guide to schools in implementing the Final Regulations, but should not be viewed as replacing a deliberate process for review of existing policy, practice, and procedure. Likewise, as with all important policy and regulatory matters, schools should work closely with their legal counsel in determining an appropriate course of action.

* Schools should continue to follow the current 2020 Title IX Regulations until August 1.

Summary of the Significant Changes Included in the Final Regulations

The Final Regulations make several significant changes to the 2020 Title IX Regulations. Some of the major changes include the following:

  • Broader definition of sexual harassment. Schools will be required to address any unwelcome sex-based conduct that is “subjectively and objectively offensive and is so severe or pervasive” that it limits a student’s equal access to an education. The prior/current 2020 Regulations required conduct to be severe “and” pervasive. Pervasive conduct requires repeated behavior, whereas severe conduct may pertain to a single violation. 
  • Expanded definitions of sex discrimination and sexual harassment. Definitions will include discrimination and harassment based on sex stereotypes, sexual orientation, gender identity, and pregnancy or related conditions. 
  • Expanded scope of Title IX to off-campus conduct. Schools will be required to address sex-based hostile environment claims in their education program or activity, even if the sex-based harassment that contributed to the hostile environment occurred outside of the school’s education program or activity.
  • Expanded scope of mandatory reporting. All employees who are not considered “confidential employees” (as defined by the Final Regulations) will be required to notify the Title IX Coordinator when the employee has information about conduct that “reasonably may” constitute sex discrimination under Title IX. 
  • Specific and detailed procedures for investigation and resolution of sex discrimination complaints. The Final Regulations lay out the specific steps a school must require its Title IX Coordinator to take when the school has knowledge of conduct that “reasonably may” constitute sex discrimination, including but not limited to offering and coordinating supportive measures, when to initiate a complaint, and taking prompt and effective action to end sex discrimination and prevent its recurrence. 
  • And more… The Final Regulations make several additional changes that will be examined and discussed at a later date – for now, we have chosen to include what we view as “critical” in terms of gaining an understanding of the changes.

Actions for Compliance with the Final Regulations by August 1, 2024

Title IX Coordinators and other school officials should work with legal counsel to analyze and understand the Final Regulations, review and revise policy, and train personnel on the Final Regulations prior to the start of the 2024-2025 academic year, consistent with the August 1 effective date.

Specifically, schools are encouraged to undertake the following:

  1. Appoint a Title IX Coordinator. A school must publish the name or title, office address, email address, and telephone number of the school’s Title IX Coordinator. If a school has more than one Title IX Coordinator, it must designate one of its Title IX Coordinators to retain ultimate oversight over those responsibilities and ensure the school’s consistent compliance with its responsibilities under Title IX. 
  2. Adopt, publish, and implement the following: (1) Non-Discrimination Policy; (2) Grievance Procedure Policy; and (3) Notice of Non-Discrimination. The Final Regulations specify language that should be included in the policies and notice. The notice must contain all required elements and must be provided to students, parents, guardians, or other authorized legal representatives of elementary school and secondary school students, employees, applicants for admission and employment, and all unions and professional organizations holding collective bargaining or professional agreements with the school. Additionally, the notice must be included on the school’s website and in each handbook, catalog, announcement, bulletin, and application form that it makes available to individuals, or which are otherwise used in connection with the recruitment of students or employees. See the DOE’s resource for more information on drafting Title IX nondiscrimination policies, grievance procedures, and notices of nondiscrimination. 
  3. Train all employees on the Final Regulations. Schools must ensure employees receive training related to their duties under Title IX “promptly upon hiring or change of position” and “annually thereafter.” Training should be administered to the following categories of persons consistent with the following:
    1. All employees. All employees must be trained on the school’s obligation to address (i) sex discrimination in its education program or activity; (ii) the scope of conduct that constitutes sex discrimination under Title IX, including the definition of sex-based harassment; and (iii) all applicable notification and information requirements under the Final Regulations.
    2. All investigators, decisionmakers, and other persons who are responsible for implementing the school’s grievance procedures or appropriate supportive measures. Including and in addition to the training requirements applicable to all employees, and to the extent the following is related to their duties, all investigators, decisionmakers, and other appropriate persons must be trained on the following: (i) the school’s obligations under the Final Regulations; (ii) the school’s grievance procedures; (iii) how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and (iv) the meaning and application of the term “relevant” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance.
    3. All facilitators of informal resolution process. Including and in addition to the training requirements applicable to all employees, all facilitators of an informal resolution process must be trained on the rules and practices associated with the school’s informal resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias.
    4. All Title IX Coordinator(s) and designees. Including and in addition to all the above training requirements, the Title IX Coordinator and any designees must be trained on their specific responsibilities, the school’s recordkeeping system, and any other training necessary to coordinate the school’s compliance with Title IX.

The DOE intends to provide further technical assistance and additional resources to schools to support implementation and compliance with the Final Regulations.*

* The DOE intends to issue a separate final rule addressing Title IX’s applicability to athletics.

How can schools comply with the Final Regulations by August 1, 2024?

  • Prior to the conclusion of the 2023-2024 school year, work with legal counsel as to strategy for implementation of the Final Regulations and identification of your Title IX team—those individuals who will be involved in that work. 
  • Throughout the early summer months, engage your Title IX team in your local policy update and review processes (i.e., policy committee meetings, multiple board meetings and readings, etc.).
  • Aim to have your school board adopt your new Title IX policy by July 1, 2024. 
  • Prior to August 1, 2024, provide Title IX training to administrative staff, summer coaches and activity advisors, and buildings and grounds and custodial staff.
  • Train all instructional staff and any remaining staff on Title IX during new-staff onboarding and/or “Welcome Back” in-service days prior to the official start of the 2024-25 school year.
  • Provide Title IX training to new hires during the onboarding process.

As we approach the end of this school year, adding Title IX compliance to the end-of-year “to do” list may seem daunting. It does not need to be – a thoughtful approach to review and implementation, as discussed above, will position schools well.

Should you have any questions regarding the implications of the Final Title IX Regulations on your educational institution, please contact your legal counsel. As well, do not hesitate to reach out to Attolles Law, s.c. for guidance, training packages, and recommended policy language.

Finally, tomorrow, April 24, 2024, Attolles Law attorneys Chrissy Hamiel and Dan Unertl will be presenting on the Final Regulations at the 2024 WASDA Annual Educational Conference at the Hyatt Regency in Green Bay during the first breakout sessions at 1:00 pm. Please join Chrissy and Dan for a deeper dive if you are attending the conference!