AGB Policy Alert: 2024 Title IX Regulations on Sex Discrimination

On April 29, the U.S. Department of Education (the Department) released the final rule on Title IX of the Education Amendments of 1972.

These regulations are expected to have far-reaching implications for colleges and universities due to their subject matter, level of complexity, and financial requirements. The rule will take effect August 1, 2024.

States, students, and other associations have already challenged the rule in court. Texas Gov. Greg Abbott ordered the Texas Education Agency to ignore the regulation, and other state leaders have filed suit. For now, no court has ordered the Department to halt implementation. AGB will continue to keep boards updated on the status of any litigation delaying or staying the implementation of these regulations.

What Board Members Need to Know

The new rule has a number of changes that boards and senior leaders should be aware of and discuss. AGB recommends that boards speak with university counsel and administrators to gain more detailed insight into specific requirements that may affect their institutions.

New definition of sexual harassment: The new regulations define sex-based harassment as a form of sex discrimination that includes sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity. The discrimination must also be considered quid pro quo harassment, hostile environment harassment, or one of four specific offenses (sexual assault, dating violence, domestic violence, and stalking).

Scope of discrimination on the basis of sex: The new regulations stipulate that discrimination on the basis of sex includes sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

This effectively extends the Title IX rule to LGBTQI+ students, employees, and others.
Although the Department plans to publish additional requirements specifically around transgender athletes, this rule may still affect athletics even without the additional regulations.

Mandated reporters: The new regulation requires any institution employee who has “authority to institute corrective measures” or has responsibility for administrative leadership, teaching, or advising to notify the Title IX coordinator when the employee has information about conduct that reasonably may constitute sex discrimination.

Employees who are not described above and are not confidential employees must notify the Title IX coordinator or provide contact information for the Title IX coordinator.
Confidential employees include individuals who are designated as confidential for the purposes of providing services related to sex discrimination.

Training: The new regulations specify that institutions must provide specific training to many different groups on campus, including all employees, investigators and decision-makers, dispute facilitators, and Title IX coordinators.

Discretion to offer informal resolution: Similar to the 2020 regulations, institutions can offer both the complainant (the individual alleging sex discrimination) and the respondent (the person accused of engaging in sex discrimination) the opportunity to engage in informal dispute resolution, so long as doing so does not violate other laws.

Expectations to investigate: While the 2020 regulations indicated that institutions should only apply the Title IX statutes to locations, events, or circumstances over which the institution exercised “substantial control” over the context in which sexual harassment may have occurred, the new rules do not include that stipulation.

The new regulations explicitly state that they apply to any education or program activity in the United States, and institutions must address sex-based hostile environments even when some of the conduct occurred off-campus or outside the country.

Evidentiary standard: In making the decision about whether sex discrimination occurred, institutions must use the “preponderance of evidence” standard of proof (a greater than 50 percent chance a claim is true) unless they use the “clear and convincing evidence” standard (substantially more likely than not that the claim is true) in all other comparable proceedings, including discrimination-related proceedings.

Grievance procedure and cross-examination: The new regulations allow but do not require institutions to provide an opportunity for “live” cross-examination, and institutions can return to using the “single-investigator” model to resolve complaints.

However, courts in multiple states and legal circuits have mandated cross-examination at institutions within their remit. Boards and institutional leaders should understand the specific requirements that apply to their institutions outside of the federal rule.
A decision-maker can be the same person as the coordinator or investigator.

Pregnancy: The 2020 regulations stated that an institution could not exclude an individual from employment based on pregnancy, childbirth, or termination of pregnancy. The new regulations go further, prohibiting any policy affected by the basis of sex and requiring institutions to provide lactation time and space.

Why This Matters

This is the latest rule the Department has issued. It changes regulations the Department implemented in 2020 under the Trump administration. New guidance or regulation has come from the Department several times in the past decade, often making extreme reversals from one presidential administration to the next.

Many Title IX coordinators and other staff have a tremendous amount of work ahead to comply with the rule in a timely fashion. In addition to the provisions above, there are dozens if not hundreds of additional operational compliance requirements that will be a heavy lift, especially for smaller institutions. Boards must ensure that their institutions devote enough resources to addressing the rule in its entirety.

Institutions face major repercussions for failing to adhere to Title IX. Failing to adhere to these standards will result in fines, lawsuits, and reputational harm.

Questions for Boards

Does the board discuss sexual misconduct and related issues with the president and institutional leaders?
Has the institution allocated sufficient resources and staff to meet the regulations’ new requirements?
How will the full board, or a committee of the board, receive information about issues related to sexual misconduct? Is engagement of the full board appropriate, or should the responsibility be delegated to an existing committee? If a committee, which one?
Under what circumstances will institutional leaders keep the committee (or full board) apprised of relevant issues? Or when and how will the board committee keep the full board apprised of pertinent information and recommendations?
How often is the institution reviewing the efficacy of relevant policies, and who is responsible for doing so? This is especially important now as state law may have different or additional components to the aforementioned federal guidelines.