U.S. Department of Education Releases Its Long-Awaited Final Title IX Regulations

The U.S. Department of Education (Department) on April 19, 2024, released its final regulations for Title IX, the law that prohibits discrimination on the basis of sex in education programs or activities that receive federal financial funding. The new regulations take effect on Aug. 1, 2024.

An unofficial copy of the final regulations can be accessed on the Department's website. Related resources posted on April 19, 2024, by the Department include a Fact Sheet, Summary of Major Provisions and Resource for Drafting Nondiscrimination Policies.

The Rulemaking Process

Holland & Knight previously reported on the Department's plan to overhaul the Trump Administration's May 2020 Title IX regulations. (See "U.S. Department of Education Proposed New Title IX Regulations," June 24, 2022.) The Department began its comprehensive review in March 2021. The Department sought public input from stakeholders and convened a nationwide virtual public hearing in June 2021. On June 23, 2022, the Department issued its Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register in July 2022. The NPRM drew a record-breaking more than 240,000 comments from the public.

Release of the new regulations was delayed several times while the Department attempted to address the unprecedented number of public comments.

Highlights from the New Regulations

Holland & Knight's June 2022 alert described some of the major differences between the 2020 regulations and the NPRM. With the exception of points 2 and 7 of the Procedural Changes section of that alert, those differences were maintained in the final regulations. That alert remains a helpful resource for those seeking to understand how their current institutional policies and procedures will need to change in order to comply with the final regulations. Regarding those two procedural points and other significant differences when compared with the NPRM, the final regulations:

• replace the NPRM's language to the effect that schools may impose "temporary measures that burden a respondent that are designed to protect the safety of the complainant" with more neutral language to the effect that schools may provide "measures that are designed to protect the safety of the parties"; the Department explains in the preamble to the regulations that that change was made "to avoid any implication of bias against respondents in the provision of supportive measures"; the Department emphasized, however, that "this does not mean that a supportive measure provided to one party cannot impose any burden on the other party; rather, the definition of "supportive measures" specifies that supportive measures cannot impose an unreasonable burden on the other party"
• replace the 2020 regulations' previously invalidated exclusionary rule and the only slightly better version included in the NPRM with a much improved evidentiary rule that states that if a party or witness refuses to respond to questions deemed relevant and not impermissible, the decision-maker "may choose to place less or no weight" upon statements by that party or witness
• contain more specific mandates regarding training requirements
• revise the parental, family, marital status and pregnancy and related conditions sections of the NPRM
• contain a detailed, fact-specific determination process that Title IX Coordinators must apply when determining whether to go forward with an investigation in the absence or withdrawal of a complaint
• add more formal procedural requirements for investigations of sex discrimination complaints that do not include allegations of sex-based harassment involving student complainants or student respondents at postsecondary institutions

Upcoming Webinar

Holland & Knight will hold a webinar from 1 p.m. to 2:30 p.m. ET on Tuesday, April 23, to discuss some of the highlights of the new Title IX regulations and steps institutions should be considering in preparing for the Aug. 1, 2024, final regulations compliance deadline. An invitation and link to register for the webinar will be provided to recipients of this alert on Monday, April 22. In the meantime, please reach out to the authors or another member of Holland & Knight's Education Team with any questions and view further information about Title IX-related services.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.