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Welcome to 2025 – a new year, with new Title IX changes!
On January 9, 2025, a federal district court in Kentucky issued a ruling in Tennessee v. Cardona, a case challenging the 2024 Title IX Regulations. The lawsuit, brought by Kentucky, Tennessee, Ohio, Indiana, Virginia, and West Virginia in the 6th Circuit, is one of several efforts aimed at overturning the regulations. The court determined that the updated rules were unconstitutional and criticized the Department of Education for failing to adhere to the Administrative Procedure Act (APA). The courts decided that three challenged provisions brought in this case “fatally taint” the entire rule and chose to order a complete “vacatur”.
What is Vacatur? “Vacatur operates on the rule itself and prevents the rule’s ‘application to all who would otherwise be subject to its operation.’ See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 987 (9th Cir. 2020))
The court ruling “the undersigned concludes that the entire Final Rule and corresponding regulations are invalid and must be set aside”. This approach nullifies the rule entirely, barring its enforcement against “anyone who would otherwise be subject to its provisions.”
This decision underscores the evolving legal landscape surrounding Title IX compliance and reminds us of the challenges in navigating regulatory changes. Yet, even as these debates unfold, the groundwork we’ve laid remains essential. Each step forward, even in the face of judicial uncertainty, lays the foundation for a culture where fairness and accountability thrive.
This ruling halts the implementation of the 2024 regulations and returns schools to the framework established by the 2020 Title IX rules. While an appeal is possible, given that a new administration is taking over in less than a week, it is unlikely. What does that mean for you?
If your district is in one of the 26 states or a school where the 2024 Title IX rule was already subject to an injunction, you do not need to change anything based on this decision. Your district should continue to use the 2020 rule.
If your district is in a state and school where the 2024 rule took effect on August 1, 2024, your safest bet is to begin using the 2020 rule for cases after January 9, 2025. This means revisiting previous policies, practices, and procedures to ensure compliance under the earlier regulatory landscape.
Key Changes - Back to 2020 Regulations
Dust off your 2020 manuals and forms. Here are some of the key differences between the 2024 and 2020 regulations:
Definition of Hostile Environment: Changed back to "severe, pervasive, and objectively offensive". Schools must address sexual harassment if it is so “severe” and “pervasive” that it “effectively denies” a person equal access to a school program or activity. §106.30(a). No longer sex based discrimination.
Jurisdiction: Schools must address a complaint of sexual harassment only if the complainant was participating or trying to participate in school at the time of filing the complaint. §106.30(a).
Formal complaint: Requires a written formal complaint to be filed by the complainant or signed by the Title IX Coordinator to initiate the grievance process. §106.45.
Single investigator model: Reverts back to Decision Maker MAY NOT be the same person as the Title IX Coordinator or Investigator. §106.45(b)(7)(i).
Training materials: Training materials must be publicly posted.§ 106.8(c).
Notice of interviews: Must send advance written notice of any investigative interviews meetings or hearings providing a party with written notice of the date, time, location, participants, and purpose of all investigative interviews with a party with sufficient time for the party to prepare to participate. §106.44(a), §106.45(b)(1)(i).
10 day requirement: Schools must send the parties, and their advisors an investigative report that fairly summarizes the relevant evidence, in electronic format or hard copy, with at least 10 days for the parties to respond. §106.45(b)(5)(vii).
Action Steps for Educational Institutions
Given Title IX has been a moving target, additional language about what “rule” is being applied will be helpful to discuss with your Title IX teams:
Incidents occurring before August 14, 2020 — follow pre-2020 Rule Title IX policy
Incidents between August 14, 2020, and July 31, 2024 — follow 2020 Title IX Rule policy
Incidents between August 1, 2024, and January 9, 2025 — follow 2024 Title IX Rule policy
Incidents on or after January 10, 2025 — follow 2020 Title IX Rule policy.
Educational institutions should take the following steps to ensure compliance with the new regulations.
Review and Update Policies: Amend existing Title IX policies and procedures to ensure alignment with the previous 2020 regulations.
Training: Provide updated training to Title IX personnel and relevant stakeholders.
Communication: Share information about the regulations with the school community, including students, employees, and parents/guardians.
Establish Title IX Stakeholder Team: Form a team comprising representatives linked to Title IX policy and process, as well as prevention and training teams.
Policy Implementation Timeline: Develop a timeline for making necessary changes, including applicable levels of review and approval.
Compliance Documentation: Ensure all policies, procedures, forms, and templates are updated to reflect the new regulations.
Monitor Updates: Stay informed about ongoing discussions, especially regarding transgender athletes' participation in sports, and adjust policies accordingly.
In addition to revising district policy and procedures, practices need to be established. McGrath Training Solutions offers a gamut of resources addressing the action steps noted above. Through implementing the McGrath Response System, schools can be assured they are in compliance with the most recent Title IX regulations and providing a safe learning and working environment for their students and staff.
Got Title IX questions? Contact info@mcgrathtraining.com for more information.
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