Today, after more than a year of anticipation, the U.S. Department of Education published the Title IX Final Rule, which prohibits discrimination on the basis of sex in education programs or activities receiving Federal financial assistance. This Final Rule takes effect on August 1, 2024, amending the current regulations which went into effect in August 2020. The robust 1577 page Final Rule clarifies the scope and application of Title IX and the obligations of institutions that receive Federal financial assistance from the Department.
The Final Rule will have significant compliance implications for Title IV institutions. Schools will be required to change policies and procedures implementing the regulations. Schools will also need to train all employees in their new reporting obligations under the rule. Of particular note, the Final Rule changes how and when school employees must take action when they learn of conduct that may constitute sex discrimination under the law. Currently, the law allows schools to designate specific employees who must take action. This Final Rule significantly broadens this to a larger group of employees.
The Department has broken down the employees who must take action into two categories: (1) employees who have authority to institute corrective measures on behalf of the school or who have responsibility for administrative leadership, teaching, or advising; and (2) all other employees. Employees in the first group must notify the Title IX Coordinator when they learn of conduct that may constitute sex discrimination. Employees in the second group must either notify the Title IX Coordinator or provide potential victims with contact information for the Title IX Coordinator and information on how to submit a complaint.
The changes referenced above will likely result in an increased burden on schools, including changes to existing policies and procedures and the implementation and frequency of training for employees. In response to comments about the burdens and cost that the Final Rule will impose on schools, the Department responded:
[We] disagree that § 106.44(c) would impose an undue and unworkable burden on [colleges], which could increase the cost of attendance in higher education. The Department has considered the costs, including potential litigation costs, in the Regulatory Impact Analysis and determined the benefits of the notification requirements justify the costs. The Department also has no reason to believe that the costs associated with § 106.44(c) are so great that they are likely to increase the overall cost of attending higher educatio institutions.
The Final Rule also requires that schools provide reasonable modifications for students based on pregnancy or related conditions. Additionally, when a student, a parent of a minor student, or other authorized legal representative informs a school employee of a student’s pregnancy or related conditions, the employee then must provide the individual with information about the school’s obligations to prevent discrimination and ensure equal access. The Final Rule may also impact campus space planning as reasonable break time for lactation for employees, and access to a clean, private lactation space for students and employees must be provided.
Duane Morris is closely reviewing this 1577 page Final Rule and will provide a more in-depth analysis as well as webinars to provide schools with guidance on the changes within the Final Rule and how to effectively implement.