The final regulations amend § 34 C.F.R. 106.1, et seq. According to a statement from the Department announcing the final rule, “The unofficial version of the final regulations is available here. In addition, the Department has released a fact sheet, a summary of the major provisions of the 2024 Title IX final rule, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.” The final rule will be published in the Federal Register on April 29, 2024. The rulemaking process for Title IX regulations related to athletics is still ongoing.

The Department commented that the final regulations “define hostile environment harassment as unwelcome 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.” According to the Department, the final regulations:

• Protect against all sex-based harassment and discrimination. The final rule protects all students and employees from all sex discrimination prohibited under Title IX, including by restoring and strengthening full protection from sexual violence and other sex-based harassment. The rule clarifies the steps a school must take to protect students, employees, and applicants from discrimination based on pregnancy or related conditions. And the rule protects against discrimination based on sex stereotypes, sexual orientation, gender identity, and sex characteristics.
• Promote accountability and fairness. The final rule promotes accountability by requiring schools to take prompt and effective action to end any sex discrimination in their education programs or activities, prevent its recurrence, and remedy its effects. The final rule requires schools to respond promptly to all complaints of sex discrimination with a fair, transparent, and reliable process that includes trained, unbiased decisionmakers to evaluate all relevant and not otherwise impermissible evidence.
• Empower and support students and families. The final rule protects against retaliation for students, employees, and others who exercise their Title IX rights. The rule requires schools to communicate their nondiscrimination policies and procedures to all students, employees, and other participants in their education programs so that students and families understand their rights. The rule supports the right of parents and guardians to act on behalf of their elementary school and secondary school children. And the rule protects student privacy by prohibiting schools from making disclosures of personally identifiable information with limited exceptions.

Additionally, the rule provides that recipients must comply with Title IX’s regulations in the event of a conflict with state law or the Family Educational Rights and Privacy Act. The rule further requires recipients to protect the rights of parties who are students with disabilities.

“These final regulations clarify Title IX’s requirement that schools promptly and effectively address all forms of sex discrimination,” said Assistant Secretary for Civil Rights Catherine E. Lhamon in a statement from the Department. “We look forward to working with schools, students, and families to prevent and eliminate sex discrimination.”

She further stated that “schools will have to do enough to end sex discrimination, giving complete effect to the Title IX guarantee that no person shall experience sex discrimination at school.”

In the coming days, a detailed summary of key changes and implications of new provisions in 34 C.F.R. §§ 106.1–31 will be published on this blog.

Ogletree Deakins’ Higher Education Practice Group will continue to monitor developments and will provide updates on the Higher Education blog as additional information becomes available.