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2024 Title IX Regulations Compliance Series: The Regulations Are Not Retroactive

An ATIXA Tip of the Week by Brett A. Sokolow, J.D.

Oh no, not another blog about the Title IX Regulations! I know, how many summaries of the same thing can you read? But here’s the thing: ATIXA’s compliance series is not another summary. It is designed to highlight topics you may not be seeing elsewhere. When the 2024 Title IX Regulations were published on Friday, April 19th, the Department of Education (ED) graciously invited ATIXA to attend a webinar overview, hosted by Office for Civil Rights (OCR) Assistant Secretary Catherine Lhamon. Below, we present one very important takeaway from that call.

During the webinar, the Assistant Secretary took a moment to reinforce to all of us attending that this Final Rule is not retroactive, which is standard practice for regulatory oversight. OCR cannot apply Rules retroactively under the Administrative Procedure Act (APA) without explicit Congressional authorization, but OCR’s interpretation takes this non-retroactivity to a new level.

The Final Rule applies to all covered incidents that occur after August 1, 2024, not to all incidents reported after August 1st. When the Assistant Secretary was asked during the call what this meant, she was blunt, and her comments were mirrored in the preamble to the regulations. She explained that OCR expects all recipients to continue to apply the 2020 Regulations to all conduct that occurs before August 1, 2024, regardless of when it is reported, and to apply the 2024 Regulations to all conduct occurring after August 1st

What are the implications of this non-retroactivity?

  • Functionally, schools, districts, and institutions will need to keep two enforcement schemes in place, side-by-side: 2020 and 2024. There is no time limit on 2020 complaints, so an act that happened in 2023 that is reported in 2032 will theoretically be subject to the 2020 Regulations. This means that institutions need to be prepared to comply with both sets of regulations for the foreseeable future.
  • The 2024 Final Rule applies only to incidents occurring after August 1, 2024. This is not discretionary. According to the Assistant Secretary during the call, recipient schools are obligated to apply the correct rule to the correct time period, and her administration is prepared to enforce the 2020 Final Rule as necessary.
  • For higher education, even if colleges decide to dispense with live hearings and cross-examination in August because the regulations so permit, colleges still need to be able to offer live hearings and cross-examination for all incidents that pre-date August 1, 2024.
  • Likewise, K-12 schools and districts will need to use the cumbersome 2020 approach for all incidents that pre-date August 1, 2024, no matter how ill-suited they happen to be to K-12 environments.
  • We don’t know if this non-retroactivity reaches back prior to the 2020 Regulations effective date of August 14, 2020, and we are posing that question to Program Legal at OCR for their insights. We’ll share their response when we receive it. We hope that does not mean that there are three schemes to maintain (pre-2020, 2020-2024, and August 1, 2024-onward), but only two.
  • ATIXA suggests that schools, districts, and institutions plan to continue to provide panels or separate decision-makers for 2020-era complaints, keep them trained per the 2020 standards, conduct hearings (higher ed), and offer cross-examination for some complaints (post-August 1st) but not others (pre-August 1st).
  • If a school intends to dispense with investigation reports as the 2024 Regulations permit in some circumstances (we recommend you keep them), schools will still need to write investigation reports for their pre-August 1, 2024, complaints. This may provide some incentive for many recipients not to depart from the 2020 scheme too drastically in their resolution structures under the 2024 Final Rule, but the education field runs the risk of having to manage two very different processes, side-by-side, indefinitely. The resources it will take to do so are significant. We’re left with some questions and takeaways…
    • ATIXA is unclear on what to do with pattern complaints involving conduct that occurs pre-August 1, 2024, and post-August 1st. We are asking Program Legal and will report back. For example, if a student alleges a pattern of sexual harassment by a faculty member that stretches from November 2021 to April 2025, do we default to the 2020 Regulations, the 2024 Regulations, or do we need to bifurcate the allegations, resolving some in a 2020-compliant process and the others in a 2024-compliant process? If so, won’t that make it very complicated to address a pattern that now straddles two processes?
    • Once we have clarity from OCR, we’ll make sure you do, too. We know this is complex, but based on the wording in the preamble, ATIXA recommends that you keep your 2020 policies and procedures (P&P) in place. Keep your team trained on both 2020 and 2024 schemes. 2024 will take effect, but it does not supplant or supersede your 2020 P&P. You’ll need to be very clear in your new policy as to what will apply, when, and why.
    • ATIXA expected some latent complaints would finally be filed after August 1st, as some potential complainants may have been awaiting the new regulations before filing, in anticipation of more complainant-friendly rules. Once they find out that their complaints will still be subject to the 2020 Rule they are hoping to avoid, we may see the expected pipeline dry up a bit, given that relief from live hearings and cross-examination will not be possible for incidents of sexual harassment that have already occurred.

We are hearing shocked and dismayed responses from clients who have figured out the implications of this non-retroactivity nightmare. One told us yesterday that given their resources, becoming proficient at one regulatory scheme is practically impossible, let alone maintaining two. We sympathize. This client is considering engaging The FAIR Center for their case management needs and told us that their planned solution is to try to manage post-August 1, 2024, complaints in-house, but to refer all pre-August 1, 2024, complaints to The FAIR Center. This idea seems to be resonating with many of our clients and potential clients, given the fact that maintaining two compliance schemes is costly, confusing, and potentially unmanageable. That’s fine with us. We’re experts at the 2020 regulatory scheme, having resolved more than 600 complaints in the last four years.

That said, for schools, districts, and institutions that need to maintain two compliance schemes side-by-side, ATIXA will be keeping all our 2020-era resources available and online, including our P&P templates, the 300+ resource TIXKit, and all certification trainings. It won’t be easy to simultaneously comply with two mutually exclusive approaches, but let’s hope it’s not three! For comprehensive access to all of ATIXA’s compliance resources, please click here.

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