What LEAs can expect from new Title IX regulations

The top 10 things to know about the new proposed Title IX regulations were discussed during a Dec. 2 breakout session at CSBA’s Annual Education Conference and Trade Show.

Amy Brandt and Cindy Allen of Liebert Cassidy Whitmore, a labor, employment and education law firm, covered the basics of the federal civil rights law as it relates to sexual misconduct as well as anticipated changes that local educational agency leaders should prepare to comply with in the new year.

The U.S. Department of Education is responsible for implementing the law and can take away federal funds when schools aren’t in compliance.

Title IX prohibits discrimination on the basis of sex and prohibits sexual misconduct that limits a person’s ability to participate in educational programs and activities. It requires that LEAs have policies and procedures that are in alignment with the current law (which, for now, are regulations from August 2020). “I know if you subscribe to [CSBA’s] GAMUT you have some resources available there,” Brandt said. “That is sort of a lifeline for your Title IX coordinator.”

The law also establishes training and education standards for employees, sets reporting rules for possible sexual harassment and bars retaliation for making a Title IX complaint or taking part in an investigation. Complaints are investigated as needed by the U.S. Department of Health and Human Services’ Office for Civil Rights.

Brandt and Allen reassured session attendees that if a violation is found, the solution typically involves correcting issues rather than being denied funding.

In July 2022, the Education Department published its new proposed Title IX regulations and the 60-day public comment period brought more than 240,000 responses. As all comments must be reviewed, the large number of submissions has slowed down the adoption process. The final regulations were have been delayed first from May and then October 2023 and are now expected in March 2024.

According to Brandt and Allen, the following are the top 10 things LEA leaders should know about the proposed regulations:

  • Broader application to sex discrimination/explicit application to LGBTQ individuals: Proposed regulations would prohibit all forms of sex discrimination — including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
  • Expands education programs or activities: Title IX requires recipients to address all sex discrimination in their education programs or activities including conduct that occurs off-campus when the respondent is representing the district or engaged in conduct under the district’s disciplinary authority.
  • Redefining quid pro quo harassment: An employee, agent or other person authorized by the educational institution to provide an aid, benefit or service under the educational institution’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit or service on a person’s participation in unwelcome sexual conduct.
  • Redefining hostile environment harassment: Unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from a district or county office of education’s program or activity.
  • Responding to sex discrimination: Title IX recipients must take prompt and effective action to end any prohibited sex discrimination that has occurred in its education program or activity, prevent its recurrence and remedy its effects.
  • Reporting sex discrimination: All employees who are not “confidential employees” must notify the Title IX coordinator of conduct that may constitute sex discrimination. Notice of identity of “confidential employees” must be provided to school participants and other steps to explain status must be taken.
  • One grievance procedure: One procedure for all complaints involving sex-based discrimination (including harassment) at elementary and secondary schools.
  • More opportunity for informal resolution: Can offer an informal resolution process whenever a district receives a complaint of sex discrimination or has information about conduct that may constitute sex discrimination, if appropriate.
  • More training: Must provide specified training to all employees, investigators, decision-makers or other individuals who are responsible for implementing the district’s grievance procedures or have the authority to modify or terminate supportive measures, facilitators of informal resolution processes and Title IX coordinators.