Department of Education’s Final Title IX Regulations Expand Scope of Prohibited Conduct and Provide Schools Greater Discretion When Reviewing Complaints of Sex Discrimination

On April 19, 2024, the Department of Education (the Department) released final Title IX regulations (the Final Rule) addressing schools’ obligations to protect against sex discrimination, including sex-based harassment and sexual violence. The Final Rule, which will take effect on August 1, 2024, concludes the Department’s intensive review of the current Title IX regulations, which were issued in May 2020 (the 2020 Rule). The Department’s review of the 2020 Rule began in March 2021 and was delayed several times because of the large volume of comments received in response to its Notice of Proposed Rulemaking (NPRM). The Final Rule does not address how Title IX applies to transgender athletes’ participation in school sports; that topic is the subject of a separate rulemaking that the Department expects to finalize in late 2024.

Notably, the Final Rule adopts, as proposed, the significant modifications to the 2020 Rule that O’Melveny described in our client alert on the NPRM, with some technical modifications. For instance, as expected, the Final Rule expands Title IX coverage to reach a broader set of conduct, including the discrimination and harassment of LGBTQ+ individuals.

There are, however, some areas in which the Final Rule departs from the NPRM. Below, we highlight several of these changes.

• Party and Witness Refusal to Respond to Questions. The 2020 Rule prohibited decisionmakers at postsecondary institutions from “rely[ing] on a[] statement of [a] party or witness” who refuses to submit to cross examination when “reaching a determination regarding responsibility.” 34 C.F.R. § 106.45(b)(6)(i). The NPRM proposed a narrower prohibition that would have barred decisionmakers from relying on statements that a party makes “in support” of his or her position if the party refuses to answer questions “related to their credibility.” See 87 Fed. Reg. 41390, 41578 (July 12, 2022). In the Final Rule, the Department addressed commenters’ concerns that the proposed rule was confusing and would have been “difficult to implement” by giving decisionmakers greater discretion to determine when a party or witness’s statement should be discounted due to a refusal to answer questions. More specifically, under the Final Rule, decisionmakers “may choose to place less or no weight upon statements by a party or witness who refuses to respond” to relevant questions. 34 C.F.R. § 106.46(l)(ii)(4) (Refusal to Respond to Questions and Inferences).
• Supportive Measures. Under the 2020 Rule, schools were required to treat complainants and respondents equally when offering supportive measures. See 34 C.F.R. § 106.44(a). The NPRM proposed that schools could impose “temporary measures that burden a respondent that are designed to protect the safety of the complainant.” 87 Fed. Reg. 41390, 41421 (July 12, 2022). In response to concerns that this suggested the supportive measures could be administered with punitive intent or convey a bias against respondents, the Final Rule replaced the quoted language with language clarifying that schools may provide “measures that are designed to protect the safety of the parties.” 34 C.F.R. § 106.2 (Definition of Supportive Measures). Still, as with the 2020 Rule, the Final Rule provides that supportive measures cannot be “unreasonably burdensome to a party.” But the Department also clarified that this standard leaves some room for supportive measures offered to one party to burden the other party.

When reviewing and updating their Title IX procedures to comply with the Final Rule, educational institutions will need to make important policy decisions, while weighing potential litigation risk. O’Melveny’s Education Industries Group is available to consult with clients working through these difficult issues.  

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California, Steven J. Olson, an O’Melveny partner licensed to practice law in California, Matt Cowan, an O’Melveny partner licensed to practice law in California, Anton Metlitsky, an O’Melveny partner licensed to practice law in New York and the District of Columbia, Damali A. Taylor, an O'Melveny partner licensed to practice law in California and New York, Kim Williams, an O’Melveny partner licensed to practice law in Texas, David Cohen an O’Melveny counsel licensed to practice law in New York, Marni Robinow, an O’Melveny counsel licensed to practice law in California, Jennifer B. Sokoler, an O’Melveny counsel licensed to practice law in New York, and Anna M. Rotrosen, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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