Seattle Attorneys Blog
The Department of Education has finally released the final rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (“Final Rule”). The Final Rule makes significant changes to the Title IX regulations that were previously amended under the Trump administration in 2020.
The Final Rule specifically provides that sex-based discrimination includes discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” A number of lawsuits have already been filed challenging protections related to sexual orientation and gender identity.
The Final Rule includes a new definition of “sex-based harassment” and removes the current definition of “sexual harassment.” The definition identifies and defines three types of sex-based harassment: quid pro quo harassment, hostile environment harassment, and specific offenses. The specific offenses include sexual assault, dating violence, domestic violence, and stalking.
Schools will be required to address a sex-based hostile environment under their education program or activity when some of the alleged conduct occurs outside the education program or activity or even outside the United States.
The Final Rule specifically prohibits discrimination based on parental, family, or marital status. It also prohibits discrimination based on past, current or potential pregnancy or pregnancy related conditions.
There are significant changes to the requirements for grievance procedures. The Final Rule will allow schools more flexibility in their grievance procedures, but eliminate some of the due process guarantees that were available to accused students under the 2020 regulations. Schools will be required to have written grievance procedures. A complaint of sex discrimination, including sex-based harassment, may be made by a complainant; a parent, guardian, or authorized legal representative, or the Title IX Coordinator. Complaints of sex discrimination other than sex-based harassment may also be filed by any student or employee or any other person who was participating in the school’s education program or activity or attempting to do so when the discrimination occurred. Under the Final Rule, schools must use the preponderance of the evidence standard, unless they use the clear and convincing standard in all other comparable proceedings. Post-secondary institutions are no longer required to provide live hearings with cross examination. Additionally, the investigator or Title IX coordinator are specifically permitted to act as the decision-maker, though having a person serve both functions was prohibited under the 2020 regulations.
The effective date for the Final Rule is August 1, 2024. The Department of Education has again given schools a fairly short time to revise policies and procedures and implement major changes that severely impact student rights.
The Department of Education has acknowledged that some of the changes may result in an increase in Title IX complaints. At the same time, the rights of students who have been accused of a Title IX violation have been reduced. If you have been accused of sex-based harassment or another Title IX violation, contacting a skilled Washington Title IX defense attorney as soon as possible can help you protect your rights and your education. Blair & Kim, PLLC, also has the experience to assist with any related criminal charges or protection order issues. Call our offices at (206) 622-6562 to set up a consultation.