In April 2024, the U.S. Department of Education released proposed changes to the Title IX regulations that were scheduled to be effective August 1, 2024. We have previously provided updates on where things stand (e.g., here, here, and here).
On July 24, 2024, a federal court in Missouri issued a preliminary injunction blocking the enforcement of the 2024 regulations in several states, including Nebraska and South Dakota. The court held that the states demonstrated a “fair chance” of prevailing on their arguments that “that the unambiguous plain language of Title IX and the legislative history support their position that the term ‘sex’ means biological sex.” What the Department proposed exceeded its authority.
For now, the Department is barred from enforcing the proposed 2024 changes to the regulations in Nebraska and South Dakota (among other states). However, the court made clear that nothing in the “order limits the ability of any school to adopt or follow its own policies,” or to otherwise comply with applicable state or local laws or rules regarding Title IX. Practically speaking, the effect of the injunction means school districts should implement procedures and practices that are best for students and schools, so long as those practices and procedures are consistent with schools’ obligations to respond to allegations of sex harassment in a way that is not deliberately indifferent.
Hey, KSB! Since we’re rapidly bearing down on the first days of school, what does that mean for our planned trainings and policies?
The only clear conclusion is that there is no way to make everyone happy. It feels like we’re in this position a lot these days. KSB’s approach since releasing our updated Title IX policy and completing our training materials has had an eye toward the likelihood of an injunction and all of this uncertainty. We avoided the politically sensitive aspects that have been the focus of most of this litigation. If you’ve adopted KSB’s policy, it is consistent with your obligation to respond to allegations of sex harassment in a way that is not deliberately indifferent. We believe that will go a long way toward showing that school districts are meeting Title IX’s mandate—whether under case law or either set of applicable regulations. If you still have questions about your policy and training options, we recommend that you consult with your legal counsel to discuss the pros and cons of each.
Having your staff trained on how to respond to allegations of sex discrimination and harassment remains one of your best defenses in court or with the Office for Civil Rights. You should train all of your staff (including subs, community coaches, and board members) on the basics of what Title IX covers and most importantly, their obligation to report allegations of sex discrimination and harassment to the appropriate administrator(s). Perhaps now more than ever, it’s important that staff understand schools still have Title IX obligations under the law, no matter what they’ve read in the headlines. This training should be short and clear, because those obligations exist under the law and court cases regardless of what the regulations say.
You should also train your administrators responsible for implementing the policy your board adopts--your “Title IX Team.” Our Title IX Team training is designed to equip you to respond to Title IX cases, with a greater focus on the key components of both sets of regulations and what the courts have actually said up to and including in the most recent injunction decisions. Even though the 2024 regulations are on hold for now, your training should ensure you’re prepared to implement your policy but also prepared to adapt quickly for any scenario as these court cases progress. Regardless of the source of your training, both the courts and the Office for Civil rights expect staff to be trained on their obligation to recognized and report sex discrimination and harassment.
As always, you can reach Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or all of us at ksb@ksbschoollaw.com. We look forward to working with you to navigate this shifting landscape as you prepare for a great school year!