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On April 29, 2024, the Department of Education published a 423-page final rule in the Federal Register 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 reinterpretation of the term “sex” in Title IX, requirements to address “sex-based harassment,” and the obligations of schools with regard to enforcement of Title IX and granting due process to those accused of discrimination. 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.

The U.S. Department of Education’s final rule amending the regulations that implement Title IX, published April 29 and effective August 1, injects into the law the term “sex-based harassment.” This term is laden with potentially enormous risks for school districts and federally funded colleges and universities. The obligations the Department introduces with this term will require institutions to navigate a hazardous gauntlet—ending unlawful harassment in their education programs or activities while safeguarding student and employee speech that is protected by the First Amendment.

In 1998, the Supreme Court decided in Gebser v. Lago Vista Independent School District that Title IX’s prohibition of discrimination on the basis of sex in federally funded education programs and activities authorizes a private right of action for monetary damages when a school fails to properly respond to its knowledge of the sexual harassment of a student by an employee. The following year, the Supreme Court ruled in Davis v. Monroe County Board of Education that this obligation of schools extends to student-on-student sexual harassment, but only when such harassment is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

In 2020, the Department amended its Title IX regulations to recognize for the first time that federally funded schools must respond to sexual harassment in their programs and activities. In doing so, the agency imported this judicially formulated Gebser/Davis Title IX obligation with respect to sexual harassment into the administrative enforcement context, largely maintaining the Supreme Court’s “severe, pervasive, and objectively offensive” standard. The Department reasoned that the Supreme Court had spoken authoritatively on the meaning of Title IX, and the rule’s consistency with the judicial standard for monetary damages would allow schools to abide by a single standard—rather than competing rules—in responding to sexual harassment under Title IX. It also recognized the importance of restraining the reach of its enforcement posture to avoid interfering with free inquiry and expression in education, even when it comes to speech that some might find offensive.

Less than four years later, in its final Title IX rule, the Department has decisively rejected this modified Gebser/Davis standard in the administrative enforcement of Title IX and adopted a new standard defining what it now calls “sex-based harassment” to include “[u]nwelcome 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 (i.e., creates a hostile environment).” This never-before-seen standard sweeps broadly into speech on and off campus and reorganizes the balance struck by the Department in 2020 to prevent Title IX enforcement from forcing schools to become overbearing censors of lesson plans, immature behavior, and stray remarks in K–12 and higher education programs and activities.

In one seismic change, the new rules replace the Gebser/Davis-based “severe, pervasive, and objectively offensive” standard with a “severe or pervasive” standard, meaning that a single instance of behavior must be punished if severe enough and expression that is not at all severe must be punished if it is sufficiently widespread. This “severe or pervasive” standard is used to evaluate hostile environment harassment in the workplace under Title VII of the Civil Rights Act of 1964. But courts have pointed out that educational institutions should not be held to the same standards as employers obligated to maintain a professional business environment. As the Supreme Court recognized in Davis, “[c]ourts . . . must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.”

The new rules also change the current rules’ sexual harassment definition by requiring that schools respond to conduct that either “limits or denies” an individual’s ability to participate in or benefit from a program or activity. This “limits” language extends beyond the current definition requiring that such behavior effectively deny a person’s equal access to the program or activity, thus sweeping yet more verbal expression within the scope of what the Department considers to be sex-based harassment. As a result of the overall expansion of the definition of proscribed harassment under its new rules, the Department projects in the preamble to its final rule that ten percent more complaints will be filed across educational institutions.

The overlap between prohibited expression and free speech under this definition will most certainly cause headaches, including rising litigation costs, to schools receiving federal financial assistance. The Department’s 2020 sexual harassment definition, like the Supreme Court’s, clearly addressed inappropriate speech and behavior that is not constitutionally protected. The Department’s new approach places some protected speech squarely inside its definition of sexual harassment—thus placing schools in the untenable position of choosing either to violate the First Amendment and campus free speech policies or to risk incurring administrative consequences under the Department’s interpretation of Title IX. Thus, schools that abide by the Constitution will expose themselves to enforcement actions, while schools that abide by the rules will expose themselves to litigation. Though the Department repeatedly states in the preamble to its final rule that it does not require institutions to violate the First Amendment, the rules offer no meaningful safe harbor for schools attempting to avoid both lawsuits and administrative enforcement.

An example places this issue in sharp relief, particularly as it intersects with the new rules’ recognition of discrimination on the basis of gender identity as a subset of discrimination on the basis of sex. The Department has previously investigated and reached resolution agreements with recipients of federal funding for failing to police the use of students’ preferred pronouns that do not match their biological sex, and its preamble to the final rule responds to concerns about compelled use of pronouns by warning that verbal harassment of students on the basis of gender identity can constitute prohibited sex-based discrimination. It is thus beyond doubt that consistent and purposeful “mispronouning” of students, even due to the sincerely held religious beliefs or philosophical tenets of the speaker, is subject to the sex-based harassment requirement of the new rules and is also clearly free expression protected by the First Amendment. Schools, teachers, and students concerned about compelled speech might be forgiven if they find the Department’s preamble response—that otherwise offensive conduct “may not amount to harassment if engaged in appropriately in the academic setting, especially in the context of postsecondary academic discourse” (emphasis added)—more concerning than reassuring.

My next post will review what the new rule means for those who are subject to a complaint of sex-based discrimination, including harassment, under the regulations, especially with regard to the grievance procedures to which they are entitled before they are disciplined under Title IX.