By Stephanie Breen, Esq., School Policy Attorney
New Title IX regulations were released on April 19th, 2024, after nearly 2 years of review. These policies that went into effect August 1st, regulate sexual assault prevention and response in K—12 school, as well as at colleges and universities. MCASA hosted a webinar on the regulations in May. You can watch the recording here. MCASA’s School Policy Staff Attorney, Stephanie Breen, Esq. developed a FAQ on the new regulations, to help service providers and preventionist working with student sexual assault survivors better understand the regulations and how they will impact their work.
Question: What is Title IX?
Answer: Title IX of the Educational Amendments Act of 1972 (“Title IX”) is a federal civil rights law that prohibits educational institutions that receive federal funding from discriminating on the basis of sex against any students or employees of the institution. Title IX requires K-12 schools, colleges, and universities to take certain steps to prevent and respond to sex-based harassment, sexual assault, and other gender-based misconduct.
Q: What version of the Title IX regulations apply to conduct that occurred before August 1, 2024?
A: The new regulations are not retroactive. This means that Title IX complaints for sexual misconduct that occurred prior to August 1, 2024 will continue to be governed by the 2020 Title IX Regulations, even if the formal complaint is filed on or after August 1, 2024. Sexual misconduct that occurs on August 1, 2024 and later will be governed by the 2024 Title IX Regulations.
Q: Has the definition of sex-based harassment changed?
A: Yes. The 2024 Regulations changes the definition of sex-based harassment to make it broader. This means that more types of conduct will meet the definition of sex-based harassment. Previously, schools were required to address sex-based harassment if it was so “severe” and “pervasive” that it “effectively denies” a person equal access to a school program or activity. § 106.30(a). Under the new rule, schools must address sex-based harassment if it is so “severe or pervasive” that it “denies or limits” a person’s ability to participate in a school program or activity. § 106.2.
Q: Are survivors still entitled to supportive measures under the new regulations?
A: Yes. Schools must offer supportive measures to all students who report sex-based harassment regardless of whether the student wishes to pursue a formal investigation or adjudication process. Supportive measures are non-punitive measures designed to support a survivor’s access to their education in a safe environment. Supportive measures can include things such as no-contact orders, counseling, academic accommodations, changes to housing, and more.
Q: Is it true that the new Title IX rule covers sex-based harassment that occurs off campus?
A: In certain circumstances, yes. Under the new rule, schools are required to address incidents of sex-based harassment that occurs in a school activity even if it occurs off campus. If a student is harassed or assaulted by an abuser during a school activity and this creates a hostile environment for the student in school, then the school must respond. This means that a school may be required to respond to a complaint of sex-based harassment that occurred in off-campus housing or while a student was studying abroad or at an athletic event..
Q: What do the new regulations do to protect LGBTQIA+ students?
A: The new regulations explicitly define sex discrimination to include discrimination based on sexual orientation, gender identity, sex characteristics, and sex stereotypes.
Q: Do the new regulations impact how sex-based harassment is reported?
A: Yes. The new regulations have changed the designation of which employees are required to report sex-based harassment to the Title IX Coordinator. All non-confidential K12 employees are now required to report possible sex-based harassment to the Title IX coordinator. At colleges and universities, all non-confidential employees must either report suspected sex-based harassment to the title IX coordinator or tell the victim how to contact the Title IX coordinator. It will be important for survivors to know which employees at their educational institutions are considered to be non-confidential employees.
Q: Are live hearings still required under the new regulations?
A: No. Under the new regulations, institutions of higher education can choose to either have a live hearing or to conduct interviews of all parties and witnesses in individual meetings.
Q: Can schools dismiss Title IX Complaints if the survivor drops out of school?
A: No. Under the new regulations, if an individual makes a formal complaint about sex-based harassment prior to leaving the school, the school must respond to the complaint. However, the complaint must have been filed prior to the date that the student withdrew from school.
Q: Is it true that the 2024 Regulations impose training requirements on schools?
A: Yes. Under the new regulations, schools must train all employees on how to recognize and report sex discrimination. Additionally, further training must be provided for all Title IX officials.
Q: What standard of proof are schools required to use in reaching their final decision about whether sex-based harassment has occurred?
A: Schools are now required to use the “preponderance of the evidence” standard in all investigations of sex-based harassment. The only exception is if a school uses the “clear and convincing evidence” standard in all “comparable” proceedings. In that case, a school is permitted to also use the “clear and convincing evidence” standard in cases of sex-based harassment.
Q: What effect do the lawsuits challenging implementation of the new Title IX regulations have on students in Maryland?
A: As of August 28, 2024, 14 Maryland colleges and universities and over 150 Maryland K-12 schools are named on challenges and unable to enforce the new regulations. You may use the injunction tracker created by ATIXA to track whether any actions are taken moving forward. The tracker can be viewed here. You can also find the updated list of schools not implementing the 2024 regulations from the Department of Education here.
Q: Do the changes to the Title IX regulations impact the way that Title IX intersects with Maryland law?
A: No, there is no significant change in the intersection between Title IX and Maryland law.
If you still have questions about the new Title IX regulations, MCASA’s Sexual Assault Legal Institute (SALI) is here to help. MCASA also offers support to student survivors of sexual assault that have questions about Title IX and their legal options. You can contact SALI with your questions at [email protected], 301-565-2277, or toll-free at 877-496-SALI.
Last updated September 16, 2024
