On April 19, the U.S. Department of Education published the final version of the 2024 Title IX regulations (2024 Final Rule). Schools across the country anxiously awaited this Final Rule for nearly two years.

Title IX of the Education Amendments of 1972 (Title IX) prohibits U.S. schools that receive federal financial assistance from discriminating on the basis of sex in education programs and activities.

Revised Title IX regulations are nothing new for educational institutions. The first iteration of implementing regulations was issued in 1975. Recently, though, schools have had to grapple with multiple revisions containing significant changes in a relatively short amount of time.

In the summer of 2022, the Department issued a notice announcing its proposed changes to the 2020 Title IX regulations. The notice included major revisions, particularly for colleges and universities. As part of the rule-making process, the Department invited the public to comment on the proposed rule. The public accepted the invitation, to say the least. The Department received over 240,000 comments, nearly double the number of comments it received when it changed the rules in 2020.

After multiple delays (it turns out that reviewing over 240,000 comments takes some time) the wait finally ended in April.

There is a lot to unpack in the 2024 Final Rule, but for purposes of this column I will focus on three specific aspects: the definition of sex discrimination, options for conducting hearings, and the designation of confidential resources.

First, the new rules set forth a new definition of sex discrimination and broaden the scope of conduct addressed.

The old regulations narrowly define hostile environment sexual harassment to mean unwelcome conduct so severe, pervasive, and objectively offensive that the conduct effectively denies a person access to the education program or activity.

The new rules expand the definition to unwelcome, sex-based conduct that 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 education program or activity. The change from requiring all factors be present to just one of the factors greatly broadens the scope of prohibited conduct.

The 2024 Final Rule also provides factors for an institution to consider in determining whether a hostile environment exists, including the duration of the conduct and the degree to which the conduct affects the person’s access to the education program or activity. This expanded definition could mean more disclosures and findings of sexual harassment.

Second, the new regulations give colleges and universities more choices with respect to how they will conduct hearings compared to the prior rules.

Generally, a school is required to investigate potential violations of its sexual misconduct policy and then determine whether the individual was responsible for violating the sexual misconduct policy. Some schools hire a neutral third-party to conduct the hearing, often referred to as a hearing officer, decision-maker, or adjudicator.

Another option available to schools is commonly referred to as a single investigator model. In a single investigator model, the person who investigated the potential policy violation (the investigator) is the same person as the decision-maker. A single investigator model can provide significant cost savings to schools because they don’t have to pay for a third-party to adjudicate the matter.

The prior regulations prohibited schools from using a single investigator model, but the new final rules put the single investigator model back on the table for schools.

Another significant requirement in the prior regulations was that schools had to provide for a live hearing, where the decision-maker had to permit each party’s advisor to directly question the other party. Under the new final rules, however, live hearings are no longer required in all cases.

Third, the 2024 Final Rule includes new rules about employees whose job functions require them to receive confidential information about sex discrimination.

Many college and university personnel are required to share information they learn related to potential sex discrimination with the Title IX Coordinator.

There are also individuals who are considered “confidential resources”, meaning that they are not obligated to tell the Title IX Coordinator about information they received related to potential sex discrimination, absent any safety concerns. Members of the clergy and medical personnel at a campus health center are examples of common confidential resources.

The new rules require a confidential employee to explain to anyone who informs the confidential employee of conduct that may constitute sex discrimination the employee’s status as a confidential resource, how to contact the Title IX Coordinator, and the type of supportive measures and services offered by the Title IX Coordinator.

It is particularly important for colleges and universities to effectively train their confidential employees as this is a substantial new requirement under the 2024 Final Rule.

The new federal regulations went into effect as of August 1, 2024, for those in New York State, with limited exceptions. Schools outside of New York State, though, face an ever-changing legal landscape with respect to the new rule. As of August 1, temporary court injunctions are preventing the Department from enforcing the rule in more than half of the states. For these states, the 2020 regulations remain in effect. To add to the confusion, one of the court orders prohibits the new rules from being enforced in specific schools, some of which are located in states where the new rules are otherwise in effect.

We can expect a bumpy ride as students return to campuses this fall. It is crucial for colleges and universities to stay up to date on the latest developments, comply with both federal and state laws, and, most importantly, buckle up for what is sure to be a long journey as we navigate this new terrain.

Kathryn M. Stiffler is an associate in the Higher Education practice group at Harter Secrest & Emery LLP.