Key Takeaways

• The U.S. Department of Education has released final Title IX regulations, effective August 14, 2020

• The regulations include significant changes and clarifications regarding sexual harassment investigations and grievance processes; the intersection of Title IX, Title VII, and FERPA; and the role and responsibilities of the Title IX Coordinator

• The regulations notably eliminate the requirement that religious institutions submit a written statement to the Assistant Secretary for Civil Rights to qualify for the Title IX religious exemption

In addition to the myriad of issues created by the COVID-19 pandemic, higher education institutions have more on their plate to tackle prior to the fall 2020 semester. The U.S. Department of Education (DOE) has released the final Title IX regulations, which include changes from the initially proposed Title IX regulations we previously reported on. The final regulations are effective August 14, 2020.

Title IX is the federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding. The final regulations include significant changes and/or clarification including but not limited to the following:

• Conduct constituting sexual harassment for Title IX purposes
• Conditions that trigger the obligation to respond to allegations of sexual harassment
• Imposing a general standard for the sufficiency of a recipient’s response to allegations of sexual harassment, and specifies the requirements that such a response much include (g., offering supportive measures)
• Specifying conditions that require the initiation of a grievance process to investigate and adjudicate allegations of sexual harassment
• Establishing procedural due process protections that must be incorporated into a grievance process to ensure a fair and reliable factual determination during an investigation and adjudication of a formal complaint of sexual harassment
• Affirming that the DOE’s Office for Civil Rights (OCR) may require remedial action for discriminating on the basis of sex or otherwise violating the DOE’s regulations implementing Title IX, consistent with 20 U.S.C. 1682
• Clarifying that in responding to any claim of sex discrimination under Title IX, there is no requirement to deprive an individual of rights guaranteed under the U.S. Constitution
• Acknowledging the intersection of Title IX, Title VII, and FERPA, as well as the legal rights of parents or guardians to act on behalf of individuals with respect to Title IX rights
• Updating the requirements for recipients to designate a Title IX Coordinator; disseminate a non-discrimination policy and the Title IX Coordinator’s contact information; and notify students, employees, and others of the grievance procedures and grievance process for handling reports and complaints of sex discrimination, including sexual harassment
• Eliminating the requirement that religious institutions submit a written statement to the Assistant Secretary for Civil Rights to qualify for the Title IX religious exemption
• Prohibiting retaliation against individuals for exercising rights under Title IX

The final regulations contain significant provisions that all higher educational institutions are well advised to carefully review with counsel. Higher education policies, procedures, and systems will need to be updated in light of these changes. Moreover, staff should be educated and trained on the new regulations to ensure compliance. Finally, while the focus of this alert was on higher education institutions, it is important to note that there are some distinctions for schools in the K-12 range of academics.

If you have questions on how these regulations affect you, contact:

• Kristin Klein Wheaton
• Christopher P. Maugans
• Or another member of our Higher Education practice