The wait is over. Yesterday, the Northern District of Texas, Amarillo Division, issued a preliminary injunction blocking the federal government from “implementing, enacting, enforcing, or taking any action in any manner to enforce” the 2024 Title IX Regulations within the State of Texas.
For Texas school districts preparing for the new school year, you have two options:
1. Make no changes and continue implementing Title IX as you have since the 2020 Title IX Regulations (“2020 Regulations”) went into effect; or
2. Enact select provisions of the 2024 Regulations that do not conflict with the 2020 Regulations or the preliminary injunction.
Below is a list of changes found in the 2024 Regulations that school districts may consider adopting as a best practice that do not violate the preliminary injunction blocking implementation of the 2024 Regulations:
1. Adopt the expanded definition of “hostile environment” in the context of sex-based harassment. Rather than the conjunctive “and” from the 2020 definition, the 2024 Regulations utilize the concurrent “or,” effectively expanding the definition of sex-based harassment to include more types of behavior and consequences. Specifically, the standard of establishing a hostile environment was expanded by replacing the “severe, pervasive, and objectively offensive” definition with the “severe or pervasive” definition. The definition also expanded the scope of consequences to include behavior that limits or denies, as opposed to the 2020 definition that required the conduct to effectively deny, a person’s ability to participate in or benefit from an educational program or activity. Because the expanded 2024 definition captures all of the misconduct addressed by the 2020 definition, school districts may adopt the new definition without running afoul of the 2020 Regulations or the injunction.
2. Withhold witness names to protect their privacy. The 2020 Regulations require both parties, the complainant and respondent, to receive an equal opportunity to inspect and review evidence “so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.” However, the 2020 Regulations also require school districts to keep the identity of any witness confidential, except as may be permitted by FERPA. The conflict has led to confusion and disputes regarding whether witness identities may be, or were required to be, revealed for the parties to meaningfully respond to the evidence. The 2024 Regulations provide that school districts may not disclose personally identifiable information of witnesses, except when it has prior written consent or when the information is disclosed to the parent of a minor. Because this provision provides more privacy protections for witnesses and do not conflict with the 2020 Regulations, school districts may adopt the confidentiality requirement without violating the 2020 Regulations or the injunction.
3. Provide reasonable accommodations to pregnant employees and students. The 2020 Regulations prohibit discrimination based on pregnancy or limitations associated with pregnancy. The 2024 Regulations provide more explicit requirements for school districts to support students and employees based on pregnancy or related conditions, including requiring school districts to provide reasonable modifications, allow for reasonable break time for lactation for employees, and access to a clean and private lactation space for students and employees. Because these new provisions add protections related to pregnancy or related conditions and do not conflict with the 2020 Regulations, they may be implemented without violating the 2020 Regulations or the injunction.
4. Provide Title IX notice to pregnant students. The 2024 Regulations add a requirement that, when a student informs an employee of a student’s pregnancy or related condition, the employee shall provide the individual with the Title IX Coordinator’s name and contact information, notice that the Title IX Coordinator can coordinate reasonable accommodations, and notice that the school district is obligated to prevent discrimination. Because these new provisions add protections for pregnant students and do not conflict with the 2020 Regulations, they may be implemented without violating the 2020 Regulations or the injunction.
5. Consult with a member of a student’s IEP team. The 2024 Regulations require consultation with one or more members of a student’s IEP or Section 504 team when a student with a disability is a complainant or a respondent in a Title IX investigation. This is not a requirement under the 2020 Regulations. Because this new provision adds protections for students with disabilities, it may be implemented without violating the 2020 Regulations or the injunction.
6. Train staff annually on Title IX. Under the 2020 Regulations, “[a] recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process,” receive training on the definition of sexual harassment, the scope of the school district’s education program or activity, how to conduct an investigation, and how to serve impartially. The 2024 Regulations generalize this requirement to training “related to their responsibilities,” but also specifies the training must occur “promptly upon hiring or change of position, and annually thereafter.” Because these provisions add protections and are more clear about training responsibilities, it may be implemented without violating the 2020 Regulations or the injunction. It is also a best practice to ensure all individuals who are involved in Title IX grievance procedures are adequately trained.
This communication does not, and is not intended to, create an attorney-client relationship. These are general factual observations regarding the implementation of Title IX in Texas. For legal advice, please contact the school law attorneys at Brackett & Ellis, P.C.
