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On April 29, 2024, the Department of Education published a 423-page final rule amending its implementing regulations for Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in federally funded education programs and activities in the United States, with certain exceptions. This blog series examines the final rule’s most significant changes—related to the Department’s reinterpretation of the term “sex” in Title IX, requirements to address “sex-based harassment,” and the obligations of schools regarding Title IX enforcement and due process in disciplinary proceedings. The final installment of the series will review legal challenges to the rule filed by states, school districts, and civil and parental rights groups in federal courts that have resulted in preliminary injunctions blocking the entire rule in 26 states and in additional schools throughout the country.

Federal courts have long recognized that public schools must comply with the Due Process Clause of the Fourteenth Amendment before disciplining students or employees. Consistent with this principle, in 2001, the U.S. Department of Education (the “Department”) interpreted its regulations under Title IX to require institutions that operate federally funded education programs or activities to provide for the “[a]dequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence.”

In 2020, in the interest of establishing a due process baseline for schools that discipline students and employees for sex discrimination pursuant to Title IX, the Department issued regulations (the “2020 Rule”) providing detailed requirements for these grievance procedures which must be met prior to disciplining an individual over sexual harassment. Less than four years later, the Department’s final Title IX rule (the “2024 Rule”) sweeps away many of the 2020 Rule’s procedural safeguards and replaces them with a regime enabling each institution to offer its own preferred version of due process in its Title IX grievance procedures.

This post will take readers through a hypothetical Title IX grievance procedure and identify the major changes instituted by the 2024 Rule that may affect the outcome.

Suppose that a public high school complies with the 2024 Rule’s requirement that it allow a biological male who identifies as female (the “complainant”) to access the girls’ locker room. In response, a biologically female student (the “respondent”), who now must share the intimate space with a biological male, repeatedly asserts, in the presence of the complainant and the coach of a school sports team, her opinion that boys should not be in the girls’ locker room.

In this situation, the 2024 Rule requires the coach, as a school employee, to notify the school district’s Title IX Coordinator of such speech, as it “reasonably may constitute” gender identity-based harassment. The Title IX Coordinator must in turn consider whether to launch the school’s Title IX grievance procedures to discipline the respondent. Alternatively, the complainant may file a complaint, oral or written, at any time—even after the complainant has left the school—to launch the school’s grievance procedures.

Under the 2024 Rule, once the school initiates its grievance procedures, the respondent has no right to a written notice of the allegations, the applicable procedures, and her rights in the process. The school must launch an investigation into whether the student created a hostile environment for the complainant through “severe or pervasive” expression that may have “limited” the complainant’s ability to participate in school sports or any other school program. As part of that investigation, the school must not only consider comments the respondent has made in school programs or on school grounds, but also must consider whether she contributed to the alleged hostile environment by making any similar comments at any time outside of school, including in online forums. The 2024 Rule removes the right of the respondent to have an advisor accompany her to meetings throughout this investigative process, and it requires the school to take action to prevent the respondent from publicly discussing the allegations or the investigation, excluding only discussions for the purpose of preparing for or participating in the procedures.

If, upon initial review of the complaint, the school finds that the conduct alleged in any complaint is not harassment, then the 2024 Rule requires the school to consult with the complainant to “clarify” the allegations prior to dismissing the complaint. The 2024 Rule also requires the school to allow the complainant to appeal any decision to dismiss a complaint, though, as explained below, it does not extend to the respondent that right to appeal at the end of the proceedings. Thus, if the respondent in our hypothetical is exonerated, the complainant may appeal in a continued effort to have the complainant disciplined; if the investigation concludes that the respondent is guilty of harassing the complainant, she will not have the opportunity to appeal.

When the school completes its investigation, the 2024 Rule only requires that it offer the parties an oral description of a subset of the evidence uncovered; gone is the 2020 Rule’s requirement that the school offer access to all evidence directly related to the proceedings and a report describing the investigative findings. The school must hand over the relevant evidence to the parties on request; however, an oral description and omission of some of the evidence related to the allegations may prevent the parties from knowing what to request.

Following the investigation of the allegations, the school must select one or more decisionmakers to examine the evidence and determine whether the respondent is responsible for the alleged discrimination. Unlike the 2020 Rule, the 2024 Rule permits the Title IX Coordinator or the person who investigated the complaint to be chosen as decisionmakers (i.e., the single-investigator model). Unlike the 2020 Rule, the 2024 Rule does not require the decisionmaker to use a particular process to evaluate credibility, and the respondent is no longer entitled to submit questions to the complainant or to witnesses. Under the 2020 Rule, the school was entitled to choose between a “clear and convincing evidence” or “preponderance of the evidence” standard of proof to evaluate whether harassment occurred; the 2024 Rule requires schools to use a preponderance of the evidence standard unless the school uses the higher standard in all other comparable proceedings—and it can use different standards for the same conduct depending on whether the respondent is a student or school employee.

Once the decisionmaker reaches a determination, the 2024 Rule takes away both parties’ right to appeal an adverse decision, unless the school permits such an appeal “in all other comparable proceedings.” If the respondent is found responsible and disciplined for the opinions she expressed, she will have to hire a lawyer and sue her school in federal or state court by challenging the finding and the process used to reach it.

This hypothetical scenario involves a grievance procedure in the K–12 context under the new Title IX regulatory regime. The 2024 Rule creates special rules for sex-based harassment proceedings in postsecondary institutions involving a student that retain some of the requirements of the 2020 Rule. But among other changes, the new regulations remove the right of the parties to a live hearing. Instead, in the interest of institutional discretion, the 2024 Rule provides considerable flexibility for the investigators and decisionmakers to ask questions they consider relevant in determining whether the respondent committed the alleged conduct, substantially narrowing the parties’ participation in the factfinding process.

It is important to note that the 2024 Rule, in promoting discretion for schools to pursue their own concept of fairness in Title IX grievance procedures, generally leaves the door open to all institutions to continue to abide by the stricter standards of the 2020 Rule. At least in the public school context, institutions that do choose to relax their procedures from the 2020 Rule’s requirements will likely have to defend this decision in lawsuits alleging that they failed to safeguard the due process rights of their students and employees.