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Department of Education Releases Title IX Final Rule Effective August 1, 2024

 Department of Education Releases Title IX Final Rule Effective August 1 2024 - Buelow Vetter Buikema Olson & Vliet

On April 19, 2024, the Department of Education released its Final Rule setting forth updated Title IX regulations. The changes come just four short years after previous regulations were released in 2020. This Legal Update will summarize the key changes to the regulations impacting K-12 schools, effective August 1, 2024.

Sex Discrimination and Sex-Based Harassment

 

In 2020 the regulations had a focus on sexual harassment.  In contrast, the new regulations focus on sex-based discrimination and harassment. The new regulations clarify that sex discrimination includes discrimination and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

There are significant changes to the definition of sex-based harassment or sexual harassment including an analysis of when sexual harassment constitutes a hostile environment. Under the 2020 regulations, sexual harassment was defined as “conduct on the basis of sex that satisfies one or more of the following: (i) a school employee conditioning education benefits on participation of unwelcome sexual conduct (i.e. quid pro quo); or (ii) unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or (iii) sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act.”

Under the new regulations, sex-based harassment is defined as “sexual harassment and other harassment on the basis of sex, including on the bases described in § 106.10, when it takes the form of: (i) quid pro quo harassment (e.g., when an employee conditions a benefit on a person’s participation in unwelcome sexual conduct); (ii) sexual assault, dating violence, domestic violence, and stalking); and/or (iii) hostile environment harassment.” The Department defined “hostile environment harassment” as “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 recipient’s education program or activity.” The legal standard has changed for determining whether sexual harassment occurred.

Response Obligations

 

Another significant change to the regulations relates to when a response is required. Under the 2020 regulations, districts were obligated to respond to allegations of sexual harassment when they had “actual knowledge” of conduct that could potentially constitute sexual harassment under Title IX and were required to respond in a manner that was not “deliberately indifferent.”

Under the new regulations, the Department has removed the “actual knowledge” and “deliberate indifference” standards, and instead requires districts “with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity [to] respond promptly and effectively.” This standard also applies to a district’s obligation to address allegations of sex discrimination in its education program or activity. Therefore, regardless of whether a formal Title IX complaint is filed, Title IX Coordinators are required to take other appropriate, prompt, and effective steps to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity. These obligations are in addition to providing remedies to an individual complainant.

Confidential Employees

 

The new regulations also include a new concept of a “confidential employee.” Confidential employees are employees whom the district has designated to provide services related to sex discrimination, to provide complainants the opportunity to receive confidential assistance, regardless of whether they wish to report to the Title IX Coordinator. Under the new regulations, confidential employees do not have obligations to report allegations of sex discrimination or sex-based harassment to the Title IX Coordinator. However, in all circumstances, a confidential employee is required to explain to the individual disclosing the sex discrimination how to contact the Title IX Coordinator, how to make a complaint of sex discrimination, and that the Title IX Coordinator may provide supportive measures. Employees designated as “confidential employees” will continue to have mandated reporting obligations as outlined in state law related to abuse or neglect, as set forth in Wis. Stat. § 48.981, and related to reporting threats of violence as set forth in Wis. Stat. §118.07.

This Legal Update highlights a few significant changes.  However, there are a number of nuanced amendments to other areas of the regulations, including definitions, roles of the Title IX Coordinator, investigator and decision-maker, and grievance process.  For questions related to the application of the regulations to areas such as pregnancy discrimination and gender identity, please contact your Buelow Vetter attorney. The Department also intends to release a separate rule specifically related to athletics.

This Legal Update is a summary of the changes to Title IX. The complete unofficial version of the Final Rule can be found at the following link:

https://www2.ed.gov/about/offices/list/ocr/docs/t9-unofficial-final-rule-2024.pdf

If you have any questions about this Legal Update, please contact:

Attorney Christina A. Katt, 414-309-8144 ckatt@buelowvetter.com

Attorney Emily Turzinski at 262-364-0268 or eturzinski@buelowvetter.com

Attorney Lauren E. Burand at 262-364-0258 or lburand@buelowvetter.com

Attorney Aleah M. Loll at 262-409-7313 or aloll@buelowvetter.com

Attorney Mary S. Gerbig at 920-362-5064 or mgerbig@buelowvetter.com

or your Buelow Vetter attorney

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