We are pleased to present Steptoe's inaugural higher education industry newsletter. In this and future newsletters, we will highlight major legal events, discuss interesting developments you may have missed, and offer our thoughts on pressing concerns facing the sector. In future newsletters, we look forward to profiling general counsel and other in-house counsel at colleges and universities.
Please click here to read the newsletter.
Introduction
We are pleased to send you Steptoe's inaugural higher education industry newsletter. In this and future newsletters, we will highlight major legal events, discuss interesting developments you may have missed, and offer our thoughts on pressing concerns facing the sector. In future newsletters, we look forward to profiling general counsel and other inhouse counsel at colleges and universities.
Biden Administration Issues New Title IX Regulations
On April 19, 2024, after an extensive notice-and-comment period, the Department of Education's Office of Civil Rights ("OCR") issued its long-anticipated amendments to the Final Rule under Title IX of the Education Amendments of 1972, providing guidance concerning the definition, investigation, and redress of sexual discrimination and related offenses in federally-funded educational settings ("2024 Final Rule"). Some key provisions in the new regulations are summarized below:
- Expanded Geographic Scope: The new regulations expand the geographical scope of Title IX to cover conduct that impacts an institution's programs or activities regardless of where it occurs, even if it is online and/or outside the United States. Institutions are not required to respond to conduct that occurred outside their educational programs or activities.
- New Standards for Sexual Harassment and Retaliation: The current standard for sexual harassment requires conduct to be "severe, pervasive, and objectively offensive," but the new rules lower the standard to "sufficiently severe or pervasive." Moreover, the new regulations clarify that retaliation includes peer retaliation by other students and does not prohibit institutions from requiring employees to participate as a witness in, or otherwise assist with, a Title IX investigation, proceeding, or hearing.
- New Protections for Discrimination Based on Sexual Orientation, Gender Identity, Pregnancy, or Parental Status: Under the new regulations, sex discrimination now includes discrimination based on sexual orientation, gender identity, and sex characteristics. Discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, or recovery from such conditions is also prohibited. The new regulations also require colleges and universities to act to ensure equal access, including reasonable modifications for students, reasonable break time for lactation for employees, and lactation space for students and employees.
- Actual Knowledge No Longer Required to Trigger Reporting Obligations: A recipient with knowledge of conduct "that reasonably may constitute sex discrimination" must respond "promptly and effectively," and actual knowledge is no longer required. The Title IX Coordinator, however, may only file a complaint if there is an imminent and serious threat to someone's health or safety or if the failure to file the complaint would prevent the school from ensuring equal access.
- Greater Flexibility in Investigations and Adjudication: The new regulations no longer mandate live hearings or cross-examination, and allow schools to return to the single[1]investigator model, in which the decisionmaker is the same person as the investigator. Moreover, schools may now offer informal resolution, not only when they receive formal complaints of sex discrimination, but also when they have information about conduct that may reasonably constitute sex discrimination.
- New Training Requirements: The new regulations contain a more expansive list of topics on which Title IX personnel must be trained based on their position. They also require training to occur promptly upon hiring, or a change of position that alters an employee's duties under Title IX and annually thereafter.
Colleges and universities should review and revise their 2020-era Title IX policies in advance of the August 1, 2024 compliance deadline, and update their trainings accordingly. The Department of Education published a resource for drafting policies, notices of investigation, and grievance procedures to assist schools with this process. Note: The Department of Education is expected to publish a separate rule on athletics later this year, which will address the participation of transgender student athletes in athletics. For now, the new regulations are expected to apply to all students, including student athletes.
Please click here to read the newsletter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.