Summary of Law:

Commonly called “Title IX,” the Elementary and Secondary Education Amendments of 1972, Title IX, prohibits sex discrimination in federally-funded education programs.

The law states: “No person in the United States shall, on the basis of sex, be excluded from participation, or be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The receipt of funds can be direct or indirect. An example of indirect funding would be a student’s participation in a federal student loan program.

Overview of the Regulations

Note: The regulations do not address athletics. Athletics will be addressed in a separate regulation change.

  1. Expands Definitions of Sex Discrimination. Sex discrimination is expanded to include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
  2. Expands geographical scope of potential wrongdoing. Title IX recipients are required to address the issue of a sex-based hostile environment in its education program even when some conduct contributing to the hostile environment occurred outside the education program or activity or outside the United States.
  3. Expands who must comply with the Title IX requirements—Quid pro quo harassment is expanded to include not only an employee but also an agent or other person authorized to provide an aid or benefit under the education program or activity.
  4. Expands the definition of discrimination. The regulations shift the focus from sexual harassment to “sex-based harassment” which includes harassment on the basis of sex to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
    1. “Sex-based harassment” includes sex separation and different treatment. The regulations specifically state that preventing a person from participating in a recipient’s education program or activity consistent with their gender identity subjects that person to more than de minimis harm.
    2. “Sex-based harassment” includes “quid pro quo” harassment, “hostile environment harassment” as well specific offenses.
      • Quid pro quo harassment has been expanded to include not only an employee but also an agent or other person authorized to provide an aid, benefit, or service under the education program or activity. Quid pro quo harassment may be explicit or implied.
      • Hostile environment harassment
        • changes the standard from a “reasonableness” standard to “totality of the circumstances.”
        • redefines what a hostile environment is from an environment which is “severe and pervasive” to “severe OR pervasive.”
        • The required effect of the harassment is expanded from including not only a denial of participation but also a limitation of participation.
      • Specific Offenses
        • Sexual assault
        • Dating violence
        • Domestic violence
        • Stalking
  5. Includes a new section entitled “Parental, family or marital status, pregnancy or related conditions” which places guidance and requirements related to pregnancy and related conditions including lactation breaks, lactation rooms, etc.
  6. Lowers the weight of evidence of sexual harassment required to be reported and investigated—Sec. 106.44(c) requires the reporting of all conduct that “reasonably may” constitute sex discrimination. The 2020 amendments required reporting only when there is “actual knowledge” of allegation of “sexual harassment.”
  7. Expands who is required to report. Requires Title IX recipients to address the issue of a sex-based hostile environment in its education program even when some conduct contributing to this environments occurred outside the education program or activity or outside the United States.
  8. Title IX Coordinators must seek and find violations. Requires the coordinator to monitor and remove the district’s education programs or activities of barriers to reporting information about sex discrimination.
  9. Allows an informal resolution even if a formal complaint was never filed except in cases in which an employee engaged in sex-based harassment in an elementary or secondary school or if the process would conflict with Federal, State or local law.
    • The complaint may now be an oral or written request to the school or district that objectively can be understood as a request for the school to investigate and make a determination about the alleged discrimination.
    • Prohibits “Personal identifiable information” from being disclosed except in limited circumstances.
      • Eliminates the right to a live hearing to contest the allegations.
      • Eliminates the right to cross examine one’s accuser and witnesses.
      • Weakens the right to be represented by an attorney.
      • Allows the return of a “single-investigator” model where the administrator serves as prosecutor, judge and jury.
      • Requires “prompt and equitable grievance procedures”

Comment:

The new regulations (dated April 19, 2024) will have a profound impact on First Amendment rights, parental rights and the due process rights of those accused of Title IX violations.

  1. First Amendment Rights Will Be Violated
    • The regulations do not protect an individual’s First Amendment rights to free speech and religious expression. Of particular concern is the lack of protection for teachers and students with respect to the issue of gender ideology. Speaking out against gender ideology or refusing to use preferred names/pronouns in an education program receiving federal funds could subject a person to investigation for a Title IX violation.
    • The impact on First Amendment rights extends beyond the federally-funded education program. The new regulations extend the tentacles of control to include conduct outside the education program or activity and, even, activities outside the United States.
  2. Parental Rights Will be Diminished
    • Parents will have less control over what is taught in school, particularly in the area of gender ideology and sexual orientation.
    • Schools will be prohibited from denying or limiting participation consistent with their gender identity. The regulations specifically state that to do so amounts to “more than de minimis harm.” Real application is unclear: Does that mean N.C. schools cannot have separate locker rooms based on biology, segregated classrooms for sex education based on biology, separate gym classes based on biology, separate accommodations on overnight field trips based on biology?
  3. Employees Will Be Spies for Compliance—Non-confidential employees are required to report any actions that “may reasonably” be a Title IX violation, not just the party affected by the alleged violator.
  4. Recipients of Funds Will Become Investigators and Enforcers—The regulations will put additional burdens on Title IX compliance officers in institutions receiving federal funds to seek and find violators, not just respond to complaints. Also, they MUST investigate all complaints if the evidence “may reasonably” amount to a violation rather than just those based on substantial evidence.
  5. No Guaranteed Due Process for the Accused
    • Complaints no longer need to be in writing and signed by the accused.
    • There can be an informal investigation.
    • The accuser can remain anonymous.
    • There is no requirement for a formal hearing affording the accused with the right to an attorney, the right to present and cross-examine witnesses, etc.
    • The Title IX Coordinator will be investigator, judge and jury in the informal proceeding.

Mary Summa is general counsel for NC Values.