On April 19, the US Department of Education released its final Title IX regulations. While the press release specifically states the rulemaking process for Title IX regulations is still ongoing for athletics, the final rules promulgated are a culmination of several years of work.
The final rules make significant changes, which should be noted include no longer requiring “actual knowledge” of an incident and removal of the “deliberate indifference” standards.
As written in the USDOE’s 1,577-page unofficial version of the final rules:
Under the 2020 amendments, a recipient is required to respond to sexual harassment when the recipient has “actual knowledge.” 34 CFR 106.30(a), 106.44(a). The 2020 amendments defined actual knowledge to mean notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary school or secondary school recipient. 34 CFR 106.30(a). The 2020 amendments also stated that imputation of knowledge based solely on “vicarious liability” or “constructive notice” would be insufficient to constitute actual knowledge, and that the standard would not be met when the only official of the recipient with actual knowledge is the respondent. 85 FR 30574. Further, the 2020 amendments announced that a recipient with actual knowledge must respond promptly in a manner that is not “deliberately indifferent,” and that a recipient is deliberately indifferent only if its response is clearly unreasonable in light of the known circumstances.
Looking primarily at post-secondary institutions, the department cited its shared concern of various stakeholders and commentators that the definition of “actual knowledge” could permit a federal funding recipient to ignore sexual harassment simply because allegations of harassing conduct were not reported to “the right” employee. This position was determined even though the department had adopted the view that reports of sexual harassment to any employee of an elementary or secondary school would constitute “actual knowledge.”
As related to the “deliberately indifferent” standard, the department stated:
The approach in the 2020 amendments singled out only sexual harassment as subject to the deliberate indifference standard, thereby raising questions as to why the Department was requiring complainants to meet a particular standard for complaints about sexual harassment, but not for other types of prohibited sex-based harassment. Moreover, a number of stakeholders and commenters reported that the deliberate indifference standard imposed by the 2020 amendments erodes efforts to promote and sustain institutional trust by appearing to hold schools to a lower standard for sexual harassment compared to other forms of discrimination.
As stated by the department, these final regulations remove the deliberate indifference standard and instead clearly define steps a federal funding recipient must take to address sex discrimination.
The regulations will become effective on August 1, 2024.