On April 19, 2024, the U.S. Department of Education issued updated Title IX regulations which are effective August 1, 2024. These new regulations will require the action and attention of local school districts, and brief summary of changes under the new regulations is included below.

Among other things, the regulations strengthen the protections of both students’ and employees’ rights to be free from sex-based conduct and sexual harassment in school by broadening the definition of retaliation and expanding the categories of protected classes to include sexual orientation, sex stereotype, sex characteristics, gender identity, and pregnancy/pregnancy related conditions. The regulations also clarify what constitutes prohibited “unwelcome sex-based conduct” and require that any permissible different treatment or separation on the basis of sex, such as in athletics or bathrooms, must not cause more than de minimis harm.

With regard to investigations, the new regulations change requirements for schools to investigation when they have “knowledge” of Title IX complaints; expand investigation obligations for conduct occurring outside school; and offer a detailed list of factors to consider in evaluating whether the conduct constitutes sexual harassment. The new regulations also again make the single investigator model available to schools, after the option was removed under prior amendment to the regulations.

Despite these changes, many aspects of the prior Title IX regulations as amended in 2020 were left unchanged, including regulations concerning supportive measures for both parties, grievance procedures for investigating complaints at the K-12 level, and appeal rights.

The new regulations have been subject to many well-publicized challenges in courts throughout the United States, and several federal judges have issued injunctions blocking the U.S. Department of Education from enforcing the regulations, primarily in the South, West, and Midwest. Those injunctions, however, only affect states and schools within those courts’ jurisdiction, and to date, no courts have issued injunctions affecting Massachusetts.

As such, in response to these new regulations, Massachusetts school districts should review their existing Title IX policies and forms to ensure they are compliant for the upcoming school year. Title IX investigators, decisionmakers, and other persons responsible for implementing grievance procedures must receive training on the revised Title IX regulations, and school districts are required to train their staff on an annual basis regarding the new Title IX regulations.

MLM attorneys have been working with Massachusetts schools over the past several months to update their policies and forms, and will continue assisting schools throughout the summer and fall as well as offering updated staff trainings in preparation for the 2024-2025 school year. In addition, the U.S. Department of Education’s Office for Civil Rights and the Massachusetts Association of School Committees (MASC) have each also issued model language to update school district policies and procedures in accordance with the new regulations.

This summary is neither intended to be an exhaustive list of changes under the new regulations nor to be legal advice. Schools are encouraged to consult directly with their regular MLM attorney to fully evaluate their obligations under the new regulations and to schedule any requested trainings.

UPDATE: On July 2, 2024, the United States District Court for the District of Kansas enjoined the U.S. Department of Education from enforcing the revised Title IX regulations in several states (Kansas, Alaska, Utah, Wyoming), “as well as any school attended by a minor child of a member of [Plaintiff’s group] Moms for Liberty.” This injunction may prevent the Department of Education from enforcing its new regulations in certain school districts, but it does not prevent Massachusetts from enforcing state law or any schools from adopting revised Title IX policies with greater protections for individuals on the basis of sex, sexual orientation, and/or gender identity.