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OVERVIEW OF TITLE IX �CHANGES EFFECTIVE AUGUST 1, 2024

PRESENTED BY:

JULY 2024

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Overview of Title IX and Recent Changes Effective August 1, 2024

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Defining Sex-Based Harassment

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Discrimination Based on Pregnancy or Related Conditions Prohibited

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LGBTQI Protections

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Responding to �Sex Discrimination

A recipient with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity must respond promptly and effectively. (§ 106.44(a)(1)).

The 2020 amendment requires a recipient to respond only when it has “actual knowledge” of allegations of “sexual harassment,” and only in a manner that is not deliberately indifferent.

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Confidential Employees

The August 2024 regulations identify confidential employees who are not required to notify the Title IX Coordinator about conduct that reasonably may constitute sex discrimination. Instead, these employees must provide information to anyone who informs the confidential employee of conduct that reasonably may constitute sex discrimination about their status as confidential for purposes of Title IX, how to contact the Title IX Coordinator, how to make a complaint, and how the Title IX Coordinator can help.

Confidential Employees are employees who hold a professional license requiring confidentiality such as Mental Health Counselors, Pastoral Counselors, Social Workers, Psychologists, and/or Health Center employees.

(§§ 106.2 and 106.44(d)).

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Non-Confidential Employees

All non-confidential employees must notify the Title IX Coordinator of conduct that reasonably may constitute sex discrimination.

Employees must, at a minimum, explain to anyone who reports conduct that may reasonably constitute sex discrimination how to contact the recipient’s Title IX Coordinator and make a complaint.

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Training Requirements for All Employees

All employees must receive training on

the general obligations under Title IX,
the scope of conduct that constitutes sex discrimination under Title IX (including sex-based harassment), and
the requirement to notify the Title IX Coordinator when they have knowledge about conduct that reasonably may constitute sex discrimination under Title IX.

The goal is that all employees need to know enough about Title IX to appropriately route Title IX complaints so they may be addressed promptly and effectively. In addition, all members of the Title IX team (e.g., investigators, decisionmakers, and other persons responsible for implementing the grievance procedures) must receive a fulsome training (as they do now) on the school’s grievance procedures, among other topics.

34 C.F.R. § 106.8(d)

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Complaints May Be Made Orally or In Writing

Starting August 1, 2024, a complaint initiating the grievance procedures can be made orally or in writing, as long as the complaint can be objectively understood as a request for the school to investigate.

34 C.F.R. § 106.30.

Under the 2020 regulations, a formal complaint initiating the grievance procedures must be in writing and signed by the complainant.

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Informal Resolution

The August 2024 regulations permit a recipient to offer an informal resolution process if appropriate whenever it receives a complaint of sex discrimination or has information about conduct that reasonably may constitute sex discrimination.

• Participation in informal resolution must be voluntary.

• Informal resolution is not permitted in situations in which an employee allegedly engaged in sex-based harassment of an elementary school or secondary school student or if such a process would conflict with Federal, State, or local law.

(§ 106.44(k))

The 2020 amendments, at § 106.45(b)(9), permit informal resolution only if a formal complaint alleging sexual harassment has been filed.

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Clear Process for Determining Whether Sex Discrimination Occurred:

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Determining whether sex discrimination occurred using the preponderance of the evidence standard of proof, unless the clear and convincing evidence standard is used in all other comparable proceedings, including other discrimination complaints, in which case that standard may be used in determining whether sex discrimination occurred. (§ 106.45(h)(1)).

Notifying parties in writing of the determination whether sex discrimination occurred, including the rationale for such determination, and the procedures and permissible bases for the complainant and respondent to appeal, if applicable. (§ 106.45(h)(2)).

When there is a determination that sex discrimination occurred, requiring the Title IX Coordinator to coordinate the provision and implementation of remedies for the complainant or others whose access to the recipient’s education program or activity has been limited or denied by sex discrimination, coordinate the imposition of any disciplinary sanctions on a respondent, and requiring the Title IX Coordinator 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. (§ 106.45(h)(3)).

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Investigation requirements: (§ 106.45(f))

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Grievance Procedures for All Sex Discrimination Complaints under Title IX�(§ 106.45)

All recipients are required to adopt grievance procedures in writing that incorporate the following:

Equitable treatment of complainants and respondents. (§ 106.45(b)(1)).
Title IX Coordinator, investigators, and decisionmakers must not have conflicts of interest or bias.
As long as a recipient ensures there is no conflict of interest or bias, a decisionmaker may be the same person as the Title IX Coordinator or investigator. (§ 106.45(b)(2)).
Presumption that the respondent is not responsible for the alleged conduct until a determination whether sex discrimination occurred is made at the conclusion of the recipient’s grievance procedures. (§ 106.45(b)(3)).
Reasonably prompt timeframes for all major stages. (§ 106.45(b)(4)).
Reasonable steps to protect privacy of parties and witnesses. (§ 106.45(b)(5)).

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Grievance Procedures for All Sex Discrimination Complaints under Title IX�(§ 106.45)- continued

All recipients are required to adopt grievance procedures in writing that incorporate the following (continued from previous slide):

Objective evaluation of all relevant and not otherwise impermissible evidence. (§ 106.45(b)(6)).
Exclusion of three types of evidence as impermissible. (§ 106.45(b)(7)).
If a recipient adopts grievance procedures that apply to the resolution of some, but not all complaints, articulate consistent principles for how the recipient will determine which procedures apply. (§ 106.45(b)(8)).
Notice of allegations to the parties. (§ 106.45(c)).
Dismissals permitted in certain circumstances, but not required, as long as the recipient offers an appeal and, as appropriate, supportive measures and takes other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur. (§ 106.45(d)).
Consolidation permitted for complaints arising out of the same facts or circumstances. (§ 106.45(e)).

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SINGLE INVESTIGATOR MODEL

One individual can both investigate the misconduct and make the determination or finding as to whether there is a violation.

Title IX Coordinator/Investigator/Decisionmaker can all be the same person.

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Credibility

A process that enables the decisionmaker to question parties and witnesses to adequately assess a party’s or witness’s credibility when credibility is in dispute and relevant.

(§ 106.45(g)).

This could simply be an interview
No longer a need for written question and answer process

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Investigation Report Not Required

The parties must be provided a “reasonable opportunity” to access and respond to the relevant evidence, but a school is not required to issue an investigative report and there is no minimum timeline for the response.

34 C.F.R. § 106.45(f)(4)

A school’s final decision must be in writing and include only the final determination, rationale, and procedures and bases for appeal.

34 C.F.R. § 106.45(h)(2)

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Retaliation (§ 106.71) �

The final regulations require a recipient to prohibit retaliation, including peer retaliation, and respond to information and complaints involving conduct that reasonably may constitute retaliation using the same procedures it uses for other forms of sex discrimination.

• Retaliation is defined as intimidation, threats, coercion, or discrimination against any person by the recipient, a student, or an employee or other person authorized by the recipient to provide aid, benefit, or service under the recipient’s education program or activity, for the purpose of interfering with any right or privilege secured by Title IX or the regulations, or because the person has reported possible sex discrimination, made a sex-discrimination complaint, or participated or refused to participate in any way in a recipient’s Title IX process. (§ 106.2).

• Peer retaliation, which is defined as retaliation by one student against another student, is also prohibited. (§ 106.2).

The 2020 amendments, at § 106.71, prohibit retaliation; they do not include definitions of either “retaliation” or “peer retaliation.”

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APPEAL

An appeal process that, at a minimum, is the same as the recipient offers in all other comparable proceedings, if any, including proceedings relating to other discrimination complaints.

(§ 106.45(i))

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Students With Disabilities

If a complainant or respondent is a student with a disability, the Title IX Coordinator must consult with the student’s Individualized Education Program (IEP) team to determine how to comply with the requirements of the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act throughout the recipient’s implementation of grievance procedures.

(34 C.F.R. § 106.44(g).)

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Parental Rights

The new Title IX regulations differentiate between the legal rights of parents of minors (i.e., under 18) and parents of older students. For example, parents of minors may file a complaint with the Title IX Coordinator on their child’s behalf.

The regulations also make an exception for the confidentiality of personally identifiable information obtained in the course of Title IX procedures, providing that the school may disclose such information to a parent, guardian, or other authorized legal representative with the legal right to receive disclosures.

34 C.F.R. §§ 106.44(j), 106.45(a)

Any disclosure to a parent or guardian must comply with overlapping law, including FERPA and Illinois School Student Records Act.

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STATE INJUNCTIONS

26 states are challenging the Biden administration rule that expands Title IX protections to ban discrimination in schools based on gender identity and sexual orientation

Biden administration’s Title IX rule is now blocked in 14 states

Last month, two judges issued orders temporarily blocking the rule from taking effect in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia. Kansas is the latest state to issue such an injunction.

No Injunction yet in Illinois.

"Finally, nothing in this order limits the ability of any school to adopt or follow its own policies, or otherwise comply with applicable state or local laws or rules regarding the subjects addressed herein. Rather, it simply prohibits Defendants from demanding compliance with the Final Rule by the schools affected by this order,or imposing any consequences for such schools' failure to comply with the Final Rule." Kansas v. United States Dep't of Educ., No. 24-4041-JWB, 2024 WL 3273285, at *21 (D. Kan. July 2, 2024)

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THANK YOU

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