New Title IX regs spell out Biden administration’s stance on ‘sex-based’ discrimination 

In 2020, the Trump administration issued much-talked-about Title IX regulations, the main thrust of which overhauled how claims of sexual harassment were handled on college campuses.  

Given that education, discrimination, sexual identity, and other similar topics figure prominently in the culture wars that divide Trump and Biden voters, it’s no surprise that with another election year upon us, the current White House occupants have rolled out their version of the rules that implement the law that prohibits recipients of federal funding from discriminating on the basis of sex. 

With the advance copy of the new regulations plus U.S. Education Department commentary totaling 1,395 pages, there’s much to digest on the administration’s updated approach to sex-based discrimination on campus. 

But what is there for public school districts to pay attention to in the regs? The following highlights a few key points. 

Definition of ‘sex-based harassment’ 

Probably the most important part of the new regulations is how ED now defines “sex-based harassment,” which is as follows:

1. Quid pro quo harassment. An employee, agent, or other person authorized by a district to provide an aid, benefit, or service under the district’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct. 
2. Hostile environment harassment. 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 district’s education, program or activity. Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of: 
   • The degree to which the conduct affected the complainant’s ability to access the district’s education program or activity; 
   • The type, frequency, and duration of the conduct; 
   • The parties’ ages, roles, within the district’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct; 
   • The location of the conduct and the context in which the conduct occurred; and 
   • Other sex-based harassment in the district’s education program or activity; or 
3. Specific offenses.  
   • Sexual assault meaning an offense classified as a forcible or nonforcible sex offense under the FBI’s uniform crime reporting system; 
   • Dating violence meaning violence committed by a person:
     • Who is or has been in a social relationship of a romantic or intimate nature with the victim; and 
     • Where the existence of such a relationship will be determined based on consideration of: 
       1. The length of the relationship;
       2. The type of relationship; and 
       3. The frequency of interaction between the persons involved in the relationship; 
     • Domestic violence meaning felony or misdemeanor crimes committed by a person who: 
       1. Is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction of the district, or a person similarly situated to the spouse of the victim; 
       2. Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; 
       3. Shares a child in common with the victim; or 
       4. Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction; or 
     • Stalking meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to: 
       1. Fear for the person’s safety or the safety of others; or 
       2. Suffer substantial emotional distress. 

Scope of ‘sex-based harassment’

In issuing the new regulations, ED reaffirmed a position it took in last year’s proposed rule, explaining that “Title IX’s broad prohibition on sex discrimination encompasses, at a minimum discrimination against an individual based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex are within the purview of Title IX and may constitute sex-based harassment. 

“Sex-based” harassment differs from “sexual” harassment because it includes forms of harassment that may or may not be “sexual” but are based on sex as occurs with pregnancy, gender identity, or sex stereotypes. 

‘Consent’

Must there be a definition of “consent” to determine whether conduct meets the definition of “sex-based harassment”? Not in ED’s eyes. 

In the new regulations, ED removed the definition of “consent,” and opted not to replace it, noting instead that “consent” is a component of the sex offenses classified by the FBI. Nonetheless, ED allowed districts to define “consent” in their policies. The department also pointed out that the new rules require that when a complainant or respondent is an elementary or secondary student with a disability, the Title IX coordinator must consult with one or more members of the student’s IEP team or one or more members of the student’s Section 504 team to ensure that the district follows IDEA or Section 504 requirements. Thus, however, districts handle what “consent” means must take into account a student’s age or developmental level and be consistent with applicable disability laws. 

Going along with this point, ED noted that some of the evidence that might be relevant to determining the capacity to consent for students with disabilities may be records that are maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the student. The new Title IX rules detail that the use of these kinds of records in a district’s grievance procedures is not allowed unless the district obtains the student’s voluntary, written consent for such use. 

“Therefore, as long as an eligible student or the parent of a student with a disability consents to the use of such records in [a district’s] grievance procedures … the [district] may use the records to aid it in making a determination regarding consent.” 

FERPA, Title IX and students with disabilities

Comments to the proposed regs expressed concerns that a district’s Title IX coordinator might not have a legitimate educational interest under FERPA to access a student’s education records, including documents related to special education services. In response to this concern, ED explained that in cases where an elementary or secondary student with a disability is a party, the Title IX coordinator must consult with one or more members of the team responsible for the student’s placement decision to ensure that the district complies with IDEA and Section 504 requirements during the grievance procedures. 

The department pointed out that FERPA permits school officials to access personally identifiable information from education records without the parent’s or eligible student’s prior written consent, provided that the district has determined that the officials have a “legitimate educational interest” in the information. 

In its 2021 FERPA guidance, ED explained that a typically, school officials have a legitimate educational interest if they need to review an education record in order to fulfill a “professional responsibility.” 

In its commentary accompanying the new regulations, ED explained that to the extent a Title IX coordinator obtains access to personally identifiable information from the education records of a student with a disability to comply with Title IX rules, it’s a legitimate educational interest.  

To comply with both FERPA and Title IX, districts must establish criteria in their annual notification of FERPA rights to permit their Title IX coordinators to constitute “a school official with legitimate educational interests.” 

Students with disabilities generally

Reiterating a point it’s made in the past, ED emphasized that students with disabilities experience sex-based harassment in “significant numbers, with some populations of students with disabilities at an even higher risk than others.” 

Under the new Title IX regulations, when an elementary or secondary student with a disability is a complainant or respondent, the Title IX grievance procedures may intersect with the decisions made by an IEP team or Section 504 team about placement or other matters involving the provision of FAPE. Thus, ED reminded districts that it is necessary to consult with the Title IX coordinator when a student with a disability is a complainant or respondent to ensure compliance with Title IX and the relevant federal disability laws. 

Additionally, ED clarified that the new regulations do not require IEP or Section 504 meetings and do not mandate consultation with full IEP or Section 504 teams. Likewise, the new rules do not identify particular individuals within the IEP team or Section 504 team who must be part of the decision-making process, nor do they specify the decision-making process that should be used. Instead, districts have discretion, recognizing the “differences between elementary and secondary school recipients, as the logistics surrounding consultation may vary depending on factors such as the recipient’s size or structure.” 

It’s worth noting, as ED did, that the new Title IX regulations do not preclude districts from taking actions such as convening additional IEP or Section 504 meetings or consulting with full IEP or Section 504 teams if necessary under the particular circumstances. For example, sex-based harassment may warrant revision of a student’s IEP or Section 504 services to meet the student’s special education and related services needs. Likewise, districts must comply with the rights and procedural safeguards guaranteed to students with disabilities or their parents or guardians under the IDEA or Section 504. 

Districts should keep in mind that “mere consultation” with one or more members of an IEP or Section 504 team does not ensure compliance with the IDEA or Section 504. Although consultation can identify additional measures necessary to ensure compliance with the IDEA and Section 504, the purpose of the consultation is to determine how a district can comply with relevant special education laws while carrying out its Title IX obligations. 

Lactation space

he new Title IX regulations require districts to ensure lactation space for students and employees as well as reasonable modifications for students and break time for employees to enable them to use that space as needed. The text of the new rules specifies that districts must “ensure that the student can access a lactation space, which must be a space other than a bathroom, that is clean, shielded from view, free from intrusion from others, and may be used by a student for expressing breast milk or breastfeeding as needed.” Regarding employees, the rules require districts to provide “reasonable break time for an employee to express breast milk or breastfeed as needed,” and districts must also “ensure that an employee can access a lactation space, which must be a space other than a bathroom that is clean, shielded from view, free from intrusion from others, and may be used by an employee for expressing breast milk or breastfeeding as needed.” 

While new to the Title IX context, lactation space and accommodations shouldn’t be new to most school districts as the Fair Standards Labor Act and the U.S. Department of Labor have required employers to make arrangements for employees to pump breast milk at work, something DOL recently provided guidance on in early 2023. 

Notice of nondiscrimination

Districts must provide a notice of nondiscrimination to students, parents, guardian or other authorized legal representatives of elementary school and secondary school students; employees; applicants for admission and employment; and all unions and professional organizations holding collective bargaining or professional agreements with the district. 

The notice must include the following: 

• A statement that the district does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates. 
• A statement that inquiries about the application of Title IX to the district may be referred to the district’s Title IX coordinator, the Office for Civil Rights, or both. 
• The name or title, office address, email address, and telephone number of the district’s Title IX coordinator. 
• How to locate the district’s nondiscrimination policy and the district’s grievance procedures. 
• How to report information about conduct that may constitute sex discrimination under Title IX and how to make a complaint. 

Districts must “prominently” include all elements of their notices of nondiscrimination on their websites and in handbooks, catalogs, announcements, bulletins, and application forms. In the alternative, districts may include in those publications a statement that the district prohibits sex discrimination in any education program or activity that it operates and that individuals may report concerns or questions to the Title IX coordinator and provide the location of the notice on the district’s website. 

Training

Under the new rules, districts must ensure that all employees are trained on: 

• Districts’ obligations to address sex discrimination in their education programs or activities. 
• The scope of conduct that constitutes sex discrimination under Title IX, including the definition of sex-based harassment. 
• All applicable notification and information requirements. 

Additional training requirements apply to the following: 

• Investigators, decision-makers, and other persons who are responsible for implementing the district’s grievance procedures or have the authority to modify or terminate supportive measures. Under the new rules, these employees must be trained on: 
  • The district’s Title IX obligations. 
  • The district’s grievance procedures. 
  • How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. 
  • The meaning and application of the term “relevant” in relation to questions and evidence, and types of evidence that are impermissible regardless of relevance. 
• Facilitators of informal resolution process. All facilitators of an informal resolution process must be trained on the rules and practices associated with a district’s informal resolution process and how to serve impartially, including by avoiding conflicts of interest and bias. 
• Title IX coordinator and designees. A district’s Title IX coordinator and any designees must be trained on their specific responsibilities, the district’s recordkeeping system, Title IX recordkeeping requirements, and other training necessary to coordinate the district’s compliance with Title IX. 

Recordkeeping

Under the rules, districts must maintain for a period of at least seven years: 

1. For each complaint of sex discrimination, records documenting the informal resolution process or the grievance procedures, and the resulting outcome. 
2. For each notification, the Title IX coordinator receives information about conduct that reasonably may constitute sex discrimination under Title IX and records documenting the actions the district took to meet its obligations. 
3. All materials used to provide training. A district must make these training materials available upon request for inspection by members of the public. 

What comes now?

Given that the previous administration dissed the new regulations as soon as they were published, it’s safe to say that what happens on Election Day, just as it did in 2020, will determine the short-term enforcement of the new rules and their long-term survival. In the meantime, districts can stay on the right side of Title IX by keeping up with the new definitions, notification requirements, training provisions, recordkeeping rules and remembering that “sex-based harassment” is a broader-than-previously understood category. 

At least in the popular media, the big question when it comes to schools and sex has, for a number of years, been about locker rooms, restrooms, and participation in sports. The new regulations don’t spell out requirements for those contexts but noted that “students experience sex-based harm that violates Title IX when a [district] bars them from accessing sex-separate facilities or activities consistent with their gender identity.” 

Nonetheless, ED did note that “sex separation in certain circumstances, including in the context of bathrooms or locker rooms, is not presumptively unlawful sex discrimination,” so long as the separation does not impose “more than de minimis injury on a protected individual.” 

When does a district impose “more than a de minimis injury” on a student? According to ED, “when it denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity,” which would violate Title IX’s general nondiscrimination mandate. Still, the department pointed out that Title IX regulations “have always permitted more than de minimis harm to individual students in the context of sex-separate athletic teams” because, in Title IX, “Congress made clear that the Title IX regulations should reflect the fact that athletic competition raises unique considerations.” 

So, it seems likely that questions regarding facilities, activities, and gender identity will continue to find their way to the courts, but for now, ED’s position maintains that separation in facilities and classes isn’t likely to meet Title IX standards but that athletic competition raises “unique considerations.”