U.S. Department of Education Publishes New Title IX Regulations Requiring Policy Updates and Training
Last month, the U.S. Department of Education (“DOE”) released new Title IX regulations that will go into effect on August 1, 2024. These regulations require training and changes to school district policies and procedures regarding sexual harassment. Among the changes are:
Definitions
The new regulations more broadly define the conduct that may be investigated by a school district. Previously, the regulations contained a narrow definition of “sexual harassment.” Now, the regulations are using the term “sex-based harassment” to trigger obligations under Title IX. Sex-based harassment includes: (1) sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, gender identity and sexual orientation and other sex-based conduct; (2) quid pro quo requiring the participation of unwelcome sexual conduct; (3) a hostile environment that is subjectively and objectively offensive and is so severe or pervasive that it limits/denies a person’s ability to participate in/benefit from an educational program or activity; and (4) sexual assault (as defined by a federal uniform crime reporting system).
While school districts in Massachusetts have always been obligated to investigate and respond to allegations that fall under the term “sex-based harassment”, these changes now require that they be investigated pursuant to Title IX regulations and its investigation process. Moreover, the new regulations lower the standard to prove a hostile environment, changing from “severe and pervasive” to “severe or pervasive.”
Investigator Model
Previously, the Title IX regulations required that the Title IX Coordinator, investigator and decisionmaker roles all be fulfilled by separate individuals. The new regulations allow school districts to utilize a “single-investigator” model allowing the same individual to fulfill all of these roles. However, individuals involved in these roles must be trained and free of bias.
Supportive Measures for Special Education Students
If a student has either an individualized education program (“IEP”) or 504 plan and is involved with an investigation falling under Title IX, the Title IX Coordinator must consult with one or more members of the student’s Team to ensure compliance with the IEP/504 throughout the investigatory process.
Response to Allegations
Previously, “actual knowledge” of sexual harassment triggered a school district’s obligation under Title IX. Going forward, the new regulations have lowered this standard, so that a school district which has knowledge of conduct that reasonably may constitute sex discrimination in a program/activity must respond promptly and effectively with next steps.
Moreover, complaints no longer need be written and signed – if a request can be objectively understood as a request to investigate and make a determination as to whether sex discrimination occurred, the school district has an obligation to respond to the request.
Complaint and Investigation Process
Unlike the previous regulations which required complainants to be presently participating in a school district’s program or activity, now complainants may file complaints of sex-based harassment even if they have left the program.
Moreover, school districts are still required to have reasonably prompt timeframes for major stages of an investigation, but no longer need to follow specific timeframe requirements (i.e., 10 days for parties to inspect documents). Rather, parties are entitled to an equal opportunity to access evidence and respond.
Off-School Conduct
The prior regulations did not permit school districts to investigate, pursuant to Title IX, off-school conduct that was not school-sponsored or outside of the United States. The new regulations expand the type of off-school conduct that can be investigated pursuant to Title IX, obligating school districts to investigate sex-based hostile environment claims even when some of the conduct alleged to contribute to a hostile environment occurred outside of the school district’s programs or activities.
Burden of Proof
A school district must now state in its complaint process the standard of proof that will be used to evaluate evidence. The school district may use a preponderance of the evidence standard (lower threshold) or a clear and convincing standard (higher threshold).
Pregnancy Protections
The Title IX regulations now require that school districts afford certain rights to pregnant students and employees. As to students, school districts must ensure that pregnant students are notified of how to contact the Title IX Coordinator, as well as receive information about reasonable modifications, potential leaves of absence, and available lactation spaces. As to employees, school districts must provide reasonable time and space for lactation purposes and may not take adverse action against an employee on the basis of sex as it relates to the employee’s parental, family or marital status, status as a family wage earner, or current, potential or past pregnancy or pregnancy-related conditions.
Policy Review and Training
School Committees will need to update their policies to conform to the new law which goes into effect on August 1st and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.
If you have questions regarding the new regulations, please contact any of our attorneys.
This update is provided for informational purposes only and does not include all of the changes in the new regulations. This update should not be considered legal advice.