Understanding the 2024 Title IX Regulations

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By: Sandra L. Jacques, Esq., LL.M., Assistant Director of Legal Education

 

Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Potential discrimination claims pertaining to “gender” and “LGBTQ status” are protected by Title IX and must be investigated. Examples of the types of discrimination claims covered under Title IX include, but are not limited to: 

  • Sex-Based Harassment;
    • Quid-pro-quo, where an employee, agent, or other person authorized by the recipient to provide an aid, benefit, or service under the recipient’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
    • Hostile Environment, where there is 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 recipient’s education program or activity (i.e., creates a hostile work/school environment)
  • Sexual Violence; 
  • Sexual assault meaning an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the FBI; 
  • Dating violence (See also 2011 NJ Teen Dating Violence Act: https://www.nj.gov/dcf/providers/boards/dvfnfrb/TDV_Fact.Sheets.Overview.pdf).
  • Domestic violence
  • Stalking
  • Pregnancy Discrimination; 
  • Failure to Provide Equal Athletic Opportunities; 
  • Sex-Based Discrimination in Science, Technology, Engineering and Math (STEM) Courses and Programs;
  • Discriminatory Application of Dress Code Policies and/or Enforcement and
  • Retaliation

Since its inception, Title IX has continuously been clarified, explained and modified by caselaw and new regulations, with the most recent update and clarification becoming effective on August 1, 2024. In New Jersey, under the current Title IX Regulations, all Educational Institutions that receive Federal funding are required to have an appointed Title IX Coordinator, and to be able to verify that the Title IX Coordinator and all of the District’s staff have been annually trained about Title IX.

Under the New Jersey Law Against Discrimination (NJLAD), New Jersey is one of 23 states (along with Washington D.C. and the U.S. Virgin Islands) that has adopted LGBTQ status as a Protected Class. (See: https://www.lgbtmap.org/equality-maps/non_discrimination_laws). The 2024 Title IX Regulations are consistent with NJLAD and the NJSIAA’s policy regarding Transgender Students and Athletics. (See: https://www.njsiaa.org/sites/default/files/documents/2020-10/transgender-faqs-approved-11-15-17.pdf ). Transgender students are to participate on the team that correlates with their gender identity. The two exceptions to both the Title IX Requirements and NJSIAA’s policy are for safety and fairness of competition reasons.

As previously noted, Title IX protects both staff and students regarding issues of pregnancy. Section 106.10 states that discrimination on the basis of sex includes “pregnancy or related conditions” such as menstruation, perimenopause, and menopause. A District must protect students, employees, and applicants form discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, or recovery (Section 106.2). Furthermore, the District must provide reasonable accommodations (Section 106.40(b)(3)(ii)), such as a reasonable break time for lactation and a clean, private space for students and employees (Sections 106.40(b)(3)(v) and 106.57(e)(1-2)). Additional relevant Federal and State laws are the Federal Pregnancy Workers Fairness Act (PWFA), the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act (2022), and the NJ Pregnancy Workers Fairness Act (2014), which requires Accommodations for Pregnancy and Breast Feeding 

In School Districts, Title IX is not the only NJ law that addresses gender and/or LGBTQ claims. Under NJ’s Anti-Bullying Bill of Rights, both gender and LGBTQ status could be identified as a Distinguishing Characteristic. Many Districts do not realize that in such HIB cases, both the Affirmative Action Officer (AAO) and the Title IX Coordinator must be notified about the alleged incidents that pertain to either gender and/or LGBTQ status. Furthermore, the AAO and Title IX Coordinator must be able to provide documentation to establish that any gender and/or LGBTQ claims were addressed under all applicable laws. 

As we discuss in a companion article in this edition of School Law Central, school districts need to take specific steps to ensure that investigation and reporting requirements are fully satisfied in those cases where the alleged bullying involved gender, gender identity, gender expression or sexual orientation. A district cannot simply assume that all obligations under Title IX, NJLAD are satisfied simply because the anti-bullying specialist has completed the HIB investigation.

Additional notable provisions of the 2024 Title IX Regulations include: 

  • Parent or guardian must be permitted to accompany student to meetings, interviews and hearings during the Title IX grievance process (85 FR 30453). The Regulations do not appear to require that the District notify the parents of this right. However, if the parent makes such a request, it must be honored, even if the District has a policy that prevents parents from being present during non-Title IX interviews and/or investigations.
  • Consent is not defined in the new regulations, but your school’s policy must have a definition. Be sure your definition is written and explained in a way that students understand it.
  • Former Students as Complainants may now be individuals who previously participated in your school’s education program when the sex discrimination took place. As an example, if a student that has graduated notifies the District of a potential Title IX violation that occurred against them, the District must still investigate, even though the student has already graduated. 
  • Complaints can be written OR oral. A District cannot require that a particular form be completed to begin an investigation.
  • The District must comply with the grievance procedure and appeals of the Title IX Coordinator’s conclusions, before imposing any disciplinary sanctions against a respondent (Section 106.45(h)(4))
    • In situations regarding health and/or safety, immediate action may be taken as needed. Ex.: Removal of a student / staff member that poses a threat to the alleged victim
    • Additionally, when discipline has been imposed for the action(s) of the aggressor that were deemed a Code of Conduct Violation and/or a confirmed HIB, the District may still impose those consequences immediately, but must wait until the conclusion of the Title IX case before declaring that such discipline also satisfies any Title IX violation(s).
  • Your revised Nondiscrimination Statement/Policy and information regarding your Title IX Coordinator will need to be widely published. It is a best practice to have your Title IX Coordinator introduce themselves at staff and student gatherings.

Furthermore, the District must identify its Confidential Employees including, but not limited to school counselors, social workers, psychologists, whose communications with students and/or staff are privileged or confidential under state law. Section 106.44(d) of Title IX required that:

  • Students and employees must know how to contact confidential employees;
  • Confidential employees must inform persons of their confidential status;
  • Confidential employee must explain how to contact the Title IX Coordinator (who can investigate or initiate informal resolution process) and how to make a complaint

All employees who are not confidential employees must notify the Title IX Coordinator “when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX[.]” See Title IX, Section 106.44(c)(1) (this provision specifically pertains to elementary and secondary schools). In addition, it is important to stress that while a confidential employee may not be required to report a potential Title IX violation, that same employee IS required to report any information related to a potential incident of harassment, intimidation or bullying to the school principal.

In conclusion, it is imperative that every New Jersey School District review its Title IX policies to ensure compliance with the 2024 Title IX Regulations. If you would like further information regarding required Title IX policies and procedures, please do not hesitate to contact LEGALONE (legalone@njpsa.org).