Presented by the School Leaders’ Liability Practice Group

Legal Update for Special Education Law – Updates from the U.S. Department of Education

Newly Released Title IX Protections

On April 19, 2024, the U.S. Department of Education released its updated Title IX regulations, which aim to prevent sex discrimination in schools. Title IX is a civil rights law that bans sex discrimination against students, employees, and others at public schools, colleges and universities that receive federal funding. As such, all educational institutions that receive federal funding must comply with these new guidelines. 

The newly released regulations will have a significant impact on the process by which schools resolve claims of sexual harassment. Prior to these changes, schools were required to investigate claims made only through a formal reporting process. Under the new system, however, schools will have the option to offer an informal resolution process, unless the complaint includes allegations that an employee engaged in sex-based harassment of an elementary school or secondary school student, or unless such a process would conflict with federal, state or local law.

These changes will also affect the manner in which sexual harassment is investigated. A significant change is that victims of sexual assault will no longer be required to attend live hearings. Additionally, the regulations no longer mandate that cross-examinations be performed when investigating an incident. One of the most controversial changes, however, is the decision to re-implement a single investigator model. Under this system, there is one individual examining the facts of a case and making a decision on its outcome. Arguments have been presented for and against this model, with some arguing that this framework minimizes stress on sexual abuse survivors, while others argue that it poses issues with regard to due process. 

In addition, the 2024 regulations significantly expand the definition of sexual assault and harassment. Previously, the definition of these terms was fairly narrow, but the updated regulations now apply to “sex-based harassment,” which includes quid pro quo sexual harassment, sexual assault, dating violence, domestic violence and stalking. As a result of these changes, schools will now be permitted to investigate far more cases of discrimination, abuse or harassment. 

Further, these new regulations also provide protections to new demographics that were not previously afforded protection under Title IX. Specifically, the 2024 regulations prohibit discrimination not only on the basis of sex, but also on the basis of sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. It must be noted that this update drastically expands protections for pregnant and lactating students and employees by requiring that schools provide reasonable modifications for students based on pregnancy or related conditions.

Finally, under these regulations, there will no longer be a geographic limitation on Title IX responsibilities. Under the old rules, federally funded schools were only permitted to investigate incidents of sexual assault or harassment that occurred on campus. However, the updated guidelines caution that a Title IX recipient should not focus on whether the alleged misconduct happened on or off campus, “but rather on whether the recipient has disciplinary authority over the respondent’s conduct in the context in which it occurred.”

Educational institutions have until August 1, 2024, to update their policies and train staff on the new Title IX requirements.  


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