New Title IX Regulations

Policies:

IASB currently plans to have PRESS policies and procedures prepared by August 1st. Please ensure you are prepared to take action on adoption of the PRESS update. The Department of Education has made it clear that it expects Districts will implement policies and procedures regarding the new regulations immediately and effectively, given that it has the entire summer to prepare to do so. For this reason, we encourage you to begin thinking now about planning the training required for implementation. 

Complaints regarding conduct which occurs on or after August 1st must use policies and procedures compliant with the recently released regulations (2024 regulations). Please maintain a copy of your policy and procedures in case you receive complaints regarding conduct which occurred after the 2020 regulations effective date and prior to the 2024 regulations effective date. 

As you prepare for next school year and review necessary updates to your student handbook, consider any steps you might need to take regarding the updates to your Title IX policy. 

Sex Discrimination:

The regulations are going to cover more conduct, but are going to require less process. For this reason, the administrative burden of the position is unlikely to decline. 

Districts will now need to use grievance procedures for sex discrimination, which includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. 

Sex discrimination also includes sex-based harassment, which includes some familiar charges: quid pro quo sex harassment, hostile environment sexual harassment (unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, it denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity), and instances of sexual assault, dating violence or stalking, or domestic violence. 

For sex-based harassment, only the victim of the conduct (their parents if a minor student) or the Title IX Coordinator can initiate the complaint. 

For sex discrimination, any of the above, or any student or employee, or any other person can initiate a complaint, as long as the victim of the conduct was participating or attempting to participate in the education program or activity at the time of conduct. 

Scope/Jurisdiction:

The regulations caution Districts against solely looking at whether the conduct happened off or on school grounds, but instead, ask Districts to look at “whether the recipient has disciplinary authority over the respondent’s conduct in the context in which it occurred.” This should include conduct occurring online that would be encompassed in a District’s cyberbullying policy. Additionally, Districts should look at other policies to determine where it exerts control over students when off-campus. 

Tiered Training: 

All employees must be trained on: 

1. The recipient’s obligation to address sex discrimination in its education program or activity;
2. The scope of conduct that constitutes sex discrimination under Title IX and this part, including the definition of sex-based harassment; and
3. All applicable notification and information requirements under 106.40(b)(2) and 106.44

Investigators, decisionmakers, and other persons who are responsible for implementing the grievance procedures or have the authority to modify or terminate supportive measures must have the training above, and training on:

1. The recipient’s obligations under 106.44
2. The recipients grievance procedures under 106.45
3. How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and
4. The meaning and application of the term “relevant” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance under 106.45

In addition to the above training, facilitators of informal resolution must be trained on the rules and practices associated with the school’s informal resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias. 

In addition to all of the above trainings, Title IX Coordinator (and designees, if any) must be trained on their specific responsibilities under 106.40(b)(3), 106.44(f) and (g) and any other training necessary to coordinate the school’s compliance with Title IX. 

Title IX Personnel:

Your Title IX Coordinator can serve as an Investigator AND Decision Maker, unlike the limitations included in the previous regulations. However, we encourage some caution as you consider who to place into particular positions. There might be cases where it is advantageous to separate the roles of Investigator and Decision Maker. 

Your Informal Resolution Facilitator cannot be the Investigator or Decision Maker.

The new regulations permit confidential employees–employees who students can report to, who do not have an obligation to report such conduct to the Title IX Coordinator. We advise against having any confidential employees at the K-12 level, as concerns about mandatory reporting can be intertwined in these matters. 

Record-Keeping: 

This is not a change, but to the extent that a district was not previously keeping well-documented records, this is a reminder that you must maintain records of the informal resolution process, any notifications of conduct which may reasonable constitute sex discrimination, steps the district took, and materials for training. Training materials no longer must be posted on websites, but must be made available to members of the public who request to review them. 

Supportive Measures:

The requirement to provide supportive measures remains largely the same, but the party must have the ability to challenge, with someone other than the implementing Title IX personnel (who is likely the Title IX Coordinator), the decision to provide, deny, modify, or terminate supportive measures.

Students with Disabilities:

If either student involved is a student with a disability, the Title IX Coordinator must consult with a member of the student’s IEP or 504 team—we would recommend this be an employee, preferably a school administrator, not a parent. 

Title IX Coordinator Responsibilities:

A recipient with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity must respond promptly and effectively and must also comply with the grievance procedure in the federal regulations. 

Title IX Coordinator must monitor the recipient’s education program or activity for barriers to reporting information that reasonably may constitute sex discrimination and take steps reasonably calculated to address such barriers. 

When deciding whether to file a complaint under the Title IX Coordinator’s own signature, the Title IX Coordinator must consider:

1. The complainant’s request not to proceed with initiation of a complaint
2. The complainant’s reasonable safety concerns regarding initiation of a complaint
3. The risk that additional acts of sex discrimination would occur if a complaint is not initiated 
4. The severity of the alleged sex discrimination, including whether the discrimination, if established, would require the removal of a respondent from campus or imposition of another disciplinary sanction to end the discrimination and prevent its recurrence
5. The age and relationship of the parties, including whether the respondent is an employee of the recipient
6. The scope of the alleged sex discrimination, including information suggesting a pattern, ongoing sex discrimination, or sex discrimination alleged to have impacted multiple individuals 
7. The availability of evidence to assist a decision maker in determining whether sex discrimination occurred 
8. Whether the recipient could end the alleged sec discrimination and prevent its recurrence without initiating its grievance procedures under 106.45

If the Title IX Coordinator initiates under their own signature, they must inform the complainant prior to doing so and appropriately address reasonable concerns about the complainant’s or others’ safety.