2024 Title IX Regulations: What Do Principals Need to Know?

By Attorneys Emily Turzinski and Aleah Loll, Buelow Vetter Buikema Olson & Vliet

On April 19, 2024, the Department of Education released its Final Rule setting forth updated Title IX regulations that prohibit sex-based discrimination and harassment in any schools that receive federal funding. The new regulations take effect August 1, 2024. The following changes will be important for principals to know upon implementation of the new Title IX regulations to help ensure that all students and staff have equal access to education programs and activities.

Sex Discrimination and Sex-Based Harassment

The new regulations focus on sex-based discrimination and harassment generally, whereas the focus of the 2020 regulations was on sexual harassment. The new regulations specify that sex discrimination includes discrimination and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. 

One of the significant changes to the definition of sex-based harassment or sexual harassment includes an analysis of when sexual harassment results in a hostile environment. 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.” This new definition results in a different standard for determining whether sexual harassment occurred.

Principals should familiarize themselves with this new definition to ensure reports of sex-based discrimination or harassment are properly reported to the Title IX Coordinator. 

Response Obligations

Districts have an obligation to respond to allegations of sex-based discrimination and harassment. 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.” 

Although principals may not be responsible for investigating allegations of Title IX violations, in order for the district to meet its Title IX obligations, it is crucial that all allegations are promptly reported to the Title IX Coordinator. Therefore, principals must be aware that if they possess knowledge of conduct that reasonably may constitute sex-based discrimination or harassment, they must take the appropriate steps to involve the Title IX Coordinator in accordance with their policies.

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 1) how to contact the Title IX Coordinator, 2) how to make a complaint of sex discrimination, and 3) that the Title IX Coordinator may provide supportive measures. Employees designated as “confidential employees” will continue to have mandatory reporting obligations under state law.

Certain employees in individual buildings may be designated as confidential employees. Principals should be aware of the individuals designated as confidential employees, to effectively differentiate which employees have reporting obligations under Title IX and which do not. 

Districts should be revising their board policies related to Title IX discrimination and harassment. The DOE has provided template policies here:  https://www2.ed.gov/about/offices/list/ocr/docs/resource-nondiscrimination-policies.pdf 

It is recommended that individual districts work with their legal counsel to review and revise their current policies. Finally, because districts have flexibility to develop some areas of their policies (i.e. timelines, designating confidential employees, etc.), principals should familiarize themselves with their individual policies to clarify their specific obligations in the Title IX process.

Initiating a Formal Complaint

A complainant is not required to be participating in or attempting to participate in a district’s education program or activity to be permitted to make a complaint about sex discrimination experienced in a district’s education program or activity. This means that a former teacher or student who has left the district due to discrimination or for any other reason may still bring a complaint under a district’s Title IX policy. This is different from the 2020 regulations that required a complainant to be participating in or attempting to participate in a district’s education program or activity in order to make a formal complaint.

Additionally, the new regulations limit the circumstances under which the Title IX Coordinator may initiate or sign a formal complaint. In the absence of a formal complaint or withdrawal of any or all allegations in a complaint, the Title IX Coordinator is permitted to initiate a formal complaint “only if the conduct presents an imminent and serious threat to someone’s health or safety or prevents the recipient from ensuring equal access based on sex to its education program or activity.” To meet this standard, the Title IX Coordinator must make a fact-specific determination based on consideration of at least eight listed factors, which includes a complainant’s request not to proceed with a complaint investigation. This new standard is intended to respect a complainant’s decisions to initiate a formal complaint or not.

In most cases, complainants do not make a report of sexual discrimination or harassment directly to the Title IX Coordinator. Often times a report is initially received by a teacher or building principal who must determine whether it should be brought to the Title IX Coordinator. Principals should be aware that former employees and students are permitted to report sex discrimination that occurred in a district’s education program or activity and to initiate a formal complaint, which would require a principal to make the Title IX Coordinator aware of such a report.

Education Program or Activity

Districts have an obligation to respond to conduct that occurs in their education program or activity to ensure that students and employees have equal access based on sex to such education programs and activities. For primary and secondary schools, this includes conduct that is subject to a district’s disciplinary authority. This may also include conduct that occurs during, after or before a school program held in a building owned by a district.

Principals should be aware that a school’s obligation to respond to a report of sex-based conduct is not limited to conduct that occurs within the school’s walls. There are a number of ways that conduct occurring outside an education program or activity, or even outside the United States, can make its way into the school and create a hostile environment. For example, if conduct that occurs over a weekend causes a student to leave class consistently or not attend school in order to avoid other students or a respondent, that could be an implication of a hostile environment requiring the district to investigate under Title IX. Principals should communicate with the Title IX Coordinator whenever there is a concern about whether conduct occurring outside of the education program or activity or outside the United States requires a school to respond.

Conclusion

Sex-based discrimination and harassment can take many forms. The most common questions we receive from principals and Title IX Coordinators relate to determining whether an incident rises to the level of Title IX and how to initiate and complete the grievance process. The new regulations provide greater flexibility for schools to determine what their grievance process will look like and in which cases a school will utilize the formal complaint process or an alternative resolution process. Principals should be familiar with their school’s Title IX policy to ensure that reports of sex-based discrimination and harassment are reaching the Title IX Coordinator in a timely manner and that everyone is doing their part to ensure equal access for all students and staff.

As a practice tip, it is essential for administrators to communicate with each other and the Title IX Coordinator regarding the applicability of Title IX to cases that may involve sex-based conduct. Too frequently, the Title IX policy is not applied at the outset of a report of conduct, which the Office for Civil Rights has noted in a number of complaint cases. A policy that clearly articulates when principals or other administrators will communicate with the Title IX Coordinator and when the Title IX policy will apply to a set of facts will help alleviate this problem.

Finally, keep in mind that your school’s policy will need to be updated by August 1, 2024, to reflect the changes in the new regulations.