Education Department Updates Title IX Regulations: Responding to Sex Discrimination and Harassment at School
Legal Sidebari
Education Department Updates Title IX
Regulations: Responding to Sex
Discrimination and Harassment at School
July 16, 2024
Title IX of the Education Amendments of 1972 (Title IX) prohibits sex discrimination in education
programs that receive federal financial assistance. In updated regulations, the Department of Education
(ED) has altered the obligations for schools when responding to allegations of sex discrimination,
including sexual harassment. The regulations cover all education programs that ED funds, including all
K–12 public school districts and most colleges and universities. The update also defines the scope of sex
discrimination under Title IX to include discrimination based on sexual orientation and gender identity, a
matter addressed in a previous Legal Sidebar. ED scheduled the updated regulations to go into effect
August 1, 2024. A number of federal district courts have issued preliminary injunctions against
enforcement of the regulations in their entirety; the injunctions currently cover 15 states as well as an
assortment of schools in other states, including those in which students or their parents are members of
certain plaintiff groups. In general, those decisions have largely focused on ED’s interpretation of sex
discrimination to include discrimination based on gender identity, though one court also ruled that some
of the changes concerning how schools must respond to harassment complaints were unlawful.
This Legal Sidebar focuses on the changes the 2024 regulations make for a recipient school’s response to
allegations of sex discrimination. Following a brief background on Title IX, it examines updated
requirements for a recipient school’s grievance procedures when responding to allegations of sex
discrimination generally, as well as more specific procedures for postsecondary institutions when
investigating allegations of sex-based harassment in which students are harassed by other students or by a
teacher. It continues with a discussion of changes as to what conduct amounts to harassment under Title
IX, followed by a look at the altered standard required of schools when responding to allegations of
discrimination and new monitoring and training obligations. It concludes with some considerations for
Congress.
General School Responsibilities Under Title IX
Title IX’s prohibition of sex discrimination applies to all the programs and activities of a recipient school,
imposing requirements ranging from how institutions administer their athletics programs to how they
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respond to allegations of sexual harassment. While the statutory text does not explicitly mention sexual
harassment, the Supreme Court has ruled, in the context of a private suit for damages against a school
district, that a school’s “deliberately indifferent” response to incidents of sexual harassment—both by
teachers against students and between students—can constitute discrimination based on sex. In addition to
private enforcement in court against recipient schools, agencies that distribute federal funding to
education programs also enforce the law. For instance, ED has long-standing regulations that require the
appointment of a Title IX Coordinator and the adoption of grievance procedures to resolve allegations of
sex discrimination.
Before 2020, those regulations did not address sexual harassment or specify in detail what the grievance
procedures needed to include. Instead, ED primarily expressed its expectations for schools’ response to
sexual harassment under Title IX through agency guidance documents. That changed in 2020, when ED
substantially revised the Title IX regulations with a particular focus on sexual harassment. Those 2020
regulations added a definition of what conduct constitutes sexual harassment under Title IX, provided that
schools with actual knowledge of harassment “must respond promptly in a manner that is not deliberately
indifferent,” and imposed a number of procedural requirements for schools when responding to
allegations of sexual harassment in particular.
As discussed below, the updated 2024 regulations make a number of changes for schools under Title IX.
First, they impose updated grievance procedures that schools must implement for sex discrimination
complaints generally, rather than just for harassment complaints as the 2020 regulations did. Second, they
impose additional procedures applicable to harassment complaints concerning students at postsecondary
institutions. Third, they alter the definition of what amounts to harassment under Title IX. Finally, they
eliminate the deliberate indifference standard for responding to harassment complaints; instead, they
impose a modified standard that is required of schools when responding to sex discrimination generally,
as well as new training and monitoring requirements that schools must implement.
Grievance Procedures for Complaints of Sex Discrimination Generally
The updated 2024 regulations require schools to adopt written grievance procedures for resolving
complaints of sex discrimination. In some ways, the updated grievance procedures are similar to the 2020
regulations. For instance, like the 2020 regulations, the 2024 regulations require grievance procedures to
include a presumption that a respondent (the person alleged to have violated the ban on sex
discrimination) is not responsible until a determination is made at the end of the grievance process. The
updated 2024 regulations, however, make important changes. In particular, the new regulations alter who
is allowed to render decisions concerning culpability, the standard of proof used to make determinations
of responsibility, as well as when and how parties may question opposing parties and witnesses. More
broadly, they apply to all complaints of sex discrimination, not just harassment complaints as the 2020
regulations did.
Decisionmaker: The 2024 regulations apply to complaints of sex discrimination generally (including
nonharassment complaints) and allow for a Title IX Coordinator or investigator to serve as the
decisionmaker. They also require that the decisionmaker not have a conflict of interest or bias. By
contrast, the 2020 regulations provided that a separate decisionmaker (not the Title IX Coordinator or the
investigator) had to determine responsibility in resolving allegations of sexual harassment.
Standard of Proof: The new regulations also change the standard of proof a school may apply in their
grievance procedures. Previously, the 2020 regulations provided that a school may apply the
preponderance of the evidence standard (greater than 50% likelihood) or the more demanding clear and
convincing standard for determining responsibility in cases of sexual harassment, but must apply the same
standard to formal complaints of harassment against students as it does against employees (including
faculty). Thus, when schools used the clear and convincing standard for harassment complaints against
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faculty (which might be required under a collective bargaining agreement), the 2020 regulations required
them to use that same standard for complaints against students.
By contrast, the updated 2024 regulations eliminate the requirement that schools use the same standard
for complaints against students as used against employees. Instead, the regulations require schools to use
the preponderance of the evidence standard unless they use the clear and convincing evidence standard in
all comparable proceedings, including those concerning types of discrimination other than based on sex.
Questioning Parties and Witnesses: The 2024 regulations also change the requirements for questioning in
grievance procedures. Before, the 2020 regulations required a live hearing for grievance procedures at
postsecondary institutions, in which a party’s advisor could cross-examine the other party and any
witnesses. For K–12 schools, a live hearing was not required, but each party was permitted to submit
written questions they wanted asked of the other party and witnesses, receive the answers, and ask follow-
up questions. Now, aside from requirements discussed below for harassment complaints concerning
students at postsecondary institutions, the updated 2024 regulations do not require schools to facilitate
live or written questioning by parties or advisors in their general grievance procedures. Instead, they
require that a school’s grievance procedures include a process through which a decisionmaker, rather than
parties or advisors, questions the parties and witnesses to assess credibility if it is both disputed and
relevant.
Harassment Involving Students at Postsecondary Institutions
The updated 2024 regulations incorporate some additional grievance procedures specific to allegations of
sex-based harassment involving students at postsecondary institutions. One requirement raising possible
constitutional considerations is the process for questioning parties and witnesses. While schools have a
responsibility under Title IX to respond appropriately to an alleged victim’s complaint of harassment,
public schools may have certain constitutional constraints on disciplining students, rooted in due process.
The regulations’ harassment provisions for postsecondary institutions are perhaps best understood within
that context. For instance, the U.S. Court of Appeals for the Sixth Circuit has ruled that the Due Process
Clause requires that when a student is accused of misconduct, a public university must provide some type
of hearing before imposing a sanction such as expulsion or suspension. In addition, when a decision turns
on a credibility determination, the university “must give the accused student or his agent an opportunity to
cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” By contrast, the
First Circuit has concluded that while the Due Process Clause does require public universities to conduct
“real-time cross examination” of a complaining witness, this requirement can be satisfied through an
inquisitorial system, such as questioning by a hearing panel, rather than a party or party’s representative.
The Fifth Circuit has largely agreed with the First Circuit’s reasoning.
Previously, the 2020 regulations required a postsecondary institution’s grievance procedures to provide
for a live hearing. Each party’s advisor was required to be given the opportunity “directly, orally, and in
real time” to ask the other party and any witness relevant questions, including ones challenging
credibility. Upon request, this questioning could occur in separate rooms with the aid of technology.
Before answering questions, decisionmakers must determine whether they are relevant and may exclude
nonrelevant questions.
Now, the 2024 regulations eliminate the requirement for live hearings, although schools may conduct
them if they choose (ED appears to acknowledge the possibility that some schools may be required by
case law to conduct live hearings). Instead, schools must provide a process for the decisionmaker to
question parties and witnesses to assess credibility if it is both disputed and relevant. This can be done
through two different methods, both of which require, unlike the general procedures described above, a
role for parties or advisors to ask or submit questions. First, the process could include individual meetings
with the decisionmaker or investigator, who can ask their own relevant questions, and must also ask initial
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and follow-up relevant questions the parties propose during individual and follow-up meetings. If a
school chooses this route, it must provide each party with recording or transcripts with enough time to
have a reasonable ability to propose follow-up questions. Alternatively, a school can provide a live
hearing, where the decisionmaker can ask relevant questions, and a party’s proposed relevant questions
can be asked by the decisionmaker or a party’s advisor.
As mentioned above, a federal district court ruled that some of the changes to what schools must include
in their grievance procedures were unlawful. For instance, the court determined that eliminating the
prohibition in the 2020 regulation against using a single investigator to make determinations of
responsibility was arbitrary and capricious, as “the single-investigator model ... lacks justification.” In
addition, the court ruled that the updated 2024 regulation failed to justify removing the live hearing
requirement for postsecondary institutions, which “strip[s] the accused of his right to confront live
witnesses.”
Conduct That Amounts to Harassment
The updated 2024 regulations also modify what conduct amounts to sexual harassment. As background,
the 2020 regulations defined “sexual harassment” for purposes of Title IX as conduct on the basis of sex
that meets at least one of three prongs. The first prong was when an employee conditions the provision of
an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (quid pro quo
harassment). Another prong was when a student or employee commits sexual assault, dating violence,
domestic violence, or stalking. Finally, “[u]nwelcome conduct determined by a reasonable person to be so
severe, pervasive, and objectively offensive that it effectively denies a person equal access to the
recipient’s education program or activity” constituted sexual harassment. This third prong drew from the
Supreme Court’s decision in Davis v. Monroe County Board of Education, which crafted a standard
governing private suits for damages against schools for a “deliberately indifferent” response to student-to-
student sexual harassment.
The updated 2024 regulations largely retain the first two prongs: quid pro quo harassment (although the
2024 regulations expand the definition to include a school’s agent or other person authorized to provide
services), as well as sexual assault, dating violence, domestic violence, and stalking. The third prong,
hostile environment harassment, is newly defined in the 2024 regulations as “[u]nwelcome sex-based
conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so
severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s
education program or activity” (emphases added). The 2024 regulations appear to make it somewhat
easier to establish harassment under this prong. The preamble to the regulations acknowledges the shift,
observing that ED “believes a broader standard is appropriate to enforce Title IX’s prohibition on sex
discrimination in the administrative context, in which educational access is the goal and private damages
are not at issue.”
Response Standard When Addressing Allegations of Discrimination
ED has also altered the overall standard expected of schools when responding to allegations of
discrimination. Previously, under the 2020 regulations, schools with actual knowledge of sexual
harassment were required to “respond promptly in a manner that is not deliberately indifferent.” That
standard drew from the Supreme Court’s decision in Davis, which concerned damages liability against
recipient schools in cases of student-on-student harassment (as well as Gebser v. Lago Vista Independent
School District, which concerned a teacher’s harassment of a student). According to Davis and the 2020
regulations, deliberate indifference means a clearly unreasonable response in light of known
circumstances.
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By contrast, the updated 2024 regulations eliminate the deliberate indifference standard. They also spell
out what schools must do to address potential sex discrimination generally, beyond allegations of sexual
harassment. The updated regulations provide that when Title IX Coordinators are “notified of conduct that
reasonably may constitute sex discrimination,” they must take certain actions “to promptly and effectively
end any sex discrimination . . . prevent its recurrence, and remedy its effects.” These include actions such
as offering supportive measures, initiating grievance procedures in response to a complaint, triggering the
informal resolution process if appropriate and requested by all parties, and in some cases determining
whether to initiate a complaint under the grievance procedures independently. More broadly, even without
a complaint, when Coordinators learn of actions that reasonably may amount to sex discrimination, they
must “take other appropriate prompt and effective steps” to ensure that discrimination does not continue
or recur. The preamble explains that Title IX Coordinators must “take[] reasonable steps calibrated to
address possible sex discrimination based on all available information.” When a Title IX Coordinator’s
response does not eliminate discrimination and prevent its recurrence, they must take additional steps.
One practical result of the updated regulations appears to increase Title IX Coordinators’ duties. Along
with the requirements discussed above, under the 2024 updated regulations, Title IX Coordinators must
monitor for barriers to reporting potential sex discrimination and take steps calculated to remove those
barriers. According to the preamble, examples of potential steps include training, increasing staffing at a
Title IX Coordinator’s office, and circulation of Title IX materials.
Annual Title IX Training Requirements for All Employees
The 2024 regulations expand Title IX training requirements for schools as well. Before, the 2020
regulations required schools to provide training for Title IX Coordinators, investigators, and
decisionmakers under a school’s grievance procedures for responding to formal complaints of sexual
harassment, as well as anyone who facilitates informal resolution procedures. The 2024 regulations
require annual Title IX training for all school employees, including prompt training for new hires and
certain employees who change job duties. More specific training requirements apply to individuals that
implement the school’s grievance procedures, facilitate informal resolution procedures, and serve as Title
IX Coordinators.
Considerations for Congress
The obligations for schools under Title IX when responding to allegations of sexual harassment have
shifted through successive presidential administrations; at the same time, courts have imposed their own
requirements in cases challenging the procedures schools have used to adjudicate these issues. The 2024
regulations once again alter the responsibilities of recipient schools when responding to allegations of
sexual harassment; and establish new procedures for responding to complaints of sex discrimination
generally. If Congress decides that a school’s responsibilities under Title IX should be made explicit in
statutory text, options include providing a definition of sexual harassment or delineating more specifically
obligations under the statute, subject to applicable constitutional requirements. Alternatively, pursuant to
the Congressional Review Act, Congress could pass a joint resolution of disapproval of the regulations
within the time limits that statute requires if it disagrees with the substance of the 2024 regulations. The
House of Representatives passed such a resolution on July 11, 2024. Additionally, Congress may also
seek to limit enforcement of those aspects of a regulation it might disagree with through appropriations
riders, though these provisions generally expire at the end of the relevant appropriations cycle.
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Author Information
Jared P. Cole
Legislative Attorney
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