An ATIXA Tip of the Week by Brett A. Sokolow, J.D., Kayleigh Baker, J.D., and Dan Fotoples, J.D., M.A.
On the morning of August 1, 2024, Title IX experts from TNG Consulting and ATIXA participated in a webinar hosted by the Department of Education (ED) regarding the 2024 Title IX Rule. During the session, U.S. Secretary of Education Miguel Cardona and Assistant Secretary for Civil Rights Catherine Lhamon addressed ED’s implementation of the 2024 Title IX Regulations, which they highlighted as “stronger, more comprehensive, and more inclusive than ever before.”
2024 Regulations: Advancing Education Equity and Opportunity
“Today, the Biden-Harris administration proudly celebrates the most comprehensive, inclusive, and accountable Title IX rules in our nation’s history,” said Secretary Cardona. “No student should have to abandon their dream of earning a degree because they are pregnant or fear discrimination, harassment, or violence at school simply because of who they are. For education to live up to its promise as America’s great equalizer, we must ensure that all students have access to schools and colleges that respect their rights.”
Assistant Secretary Lhamon noted that these regulations address three critical goals: “enforce comprehensive coverage…to ensure no person experiences discrimination [based on sex], address many potential gaps left by the 2020 Regulations, and increase clarity and consistency.”
Secretary Cardona and Assistant Secretary Lhamon hailed the 2024 Regulations as representative of ED’s core commitment to fundamental fairness and access to education. Their statements also emphasized key provisions of the 2024 Regulations, noted how they expanded Title IX protections, shared resources to guide schools in implementation, and spotlighted training and technical assistance opportunities.
Key Provisions of the 2024 Regulations
- The 2024 Regulations protect all students and employees from all forms of sex-discrimination by requiring a prompt and effective response to promote accountability, whereas the 2020 Regulations only require recipients to avoid being deliberately indifferent.
- The scope of the 2024 Regulations reflects Title IX’s broad mandate and encompasses sex discrimination complaints and retaliation complaints in addition to the sex-based harassment complaints we saw under the 2020 Regulations. The 2024 Regulations also ensure protections for pregnant and parenting students by clarifying what steps schools and institutions must take.
- The 2024 Regulations provide more flexibility and more discretion than the 2020 Regulations, remove time-consuming elements of the 2020 Regulations, and aim to empower students and families to be aware of and understand the protections that exist.
Key Takeaways
Although Assistant Secretary Lhamon did not discuss the particulars of any specific litigation, she addressed the current legal landscape and answered practitioner questions to clarify the application of the Regulations.
- Assistant Secretary Lhamon indicated that despite the legal challenges, ED believes that the 2024 Regulations are legally sound and will survive litigation.
- ED understands that the 2024 Regulations cannot be implemented in 26 states, in addition to several specific schools covered by injunctions in various federal courts. In those states and for those individual schools, ED will continue to enforce the 2020 Regulations.
- The 2024 Regulations take effect today in all other states, Washington D.C., and Puerto Rico.
- The 2024 Regulations apply to behavior occurring on August 1, 2024, or thereafter. The 2020 Regulations will continue to apply to sexual harassment occurring before August 1, 2024, if that behavior would have fallen within the 2020 Regulations’ jurisdiction.
- The 2024 Regulations did not change the existing religious exemption provisions of Title IX.
- The 2024 Regulations do not apply to the question of which team a student is permitted to participate on in situations involving sex-separated teams.
ATIXA’s Recommendation
Last week, ATIXA published a position statement that aligns with the guidance Assistant Secretary Lhamon provided today. Schools in states affected by an injunction or schools mentioned in relation to an injunction (view our Injunction Tracker for the lists) should continue to comply with the 2020 Regulations. All practitioners should continue to work with legal counsel to stay flexible if the courts take further action or expand the injunctions. ATIXA will continue to provide updates as they become available. It seems reasonable, based on the statements in the webinar today, to assume that the Office for Civil Rights (OCR) enforcement will vary by school, not by recipient. This means that multi-campus schools and multi-school districts may find themselves with some locations covered by injunctions and with other locations not covered. Thus, there could be schools in the same district with different policies and procedures, where some are subject to the 2020 Regulations and others to the 2024 Regulations. This could also happen with multi-site colleges, especially those that operate in multiple states. This patchwork is unfortunate and will make it harder for schools to be clear to constituents as to what policies and procedures apply. ATIXA is here to guide you through that.
OCR Resources
Assistant Secretary Lhamon noted that OCR offers various resources on its website, including the newly released Small Entity Compliance Guide for the 2024 Regulations.
ATIXA Resources
In addition to the resources provided by ED, ATIXA offers model policies for higher education institutions and K-12 schools, along with templates for communicating with your communities if you are in states or schools where you cannot yet implement the regulations. ATIXA will continue to share updates as developments unfold.
Visit ATIXA’s Regulations Hub to access implementation training and certification courses tailored to each regulatory framework, resources, compliance guidance, and FAQs related to the 2020 and 2024 Regulations.