By: Ashley N. Emerzian, Esq. Emerzian Shankar Legal Inc. and Pamela Schock, Assistant Dean of Student Development and Title IX Coordinator, Fresno Pacific University
Originally published in the February 2025 SSDA Newsletter
The past several years have seen tumultuous changes in regulations implementing Title IX. 2025 continues this trend. This article reviews the recent changes to the Title IX legal landscape, discusses the current status of the law, and shares some ideas for how small school districts can maintain compliance with limited resources in this potentially high-risk area.
Title IX Landscape Prior to 2020
While many associate Title IX only with college athletics, it also prohibits sexual harassment and sexual assault on any school campuses that receive federal funding. Prior to 2020, guidance on how the federal government required local education agencies to comply with Title IX was mostly limited to unofficial publications called “Dear Colleague Letters,” which were non-binding.
Significant binding guidance in California began to be issued by the courts. In the mid-2000s, California saw significant litigation regarding Title IX implementation, but it was primarily limited to college campuses. This new body of law was largely driven by accused individuals found responsible for Title IX violations challenging the finding against them and the resulting disciplinary action. The court decisions in these cases focused on ensuring that both the accuser and the accused were treated fairly in these cases. They criticized colleges that did not make their investigation processes clear and formal enough. The courts also scrutinized giving a single individual the power to both investigate and to make a final decision, and procedures that did not provide the parties with a transparent understanding of the evidence and an opportunity to directly respond to the evidence against their position.
For California K-12 school districts, this period meant following model policies focused on California Education Code and Government Code compliance, without significant consideration of federal Title IX overlays. The guidance the courts were providing colleges was largely seen as inapplicable to K-12 districts.
2020 Federal DOE Title IX Regulations
During summer 2020, for the first time education agencies at every level were confronted with implementation of federal regulations that specifically dictated how schools must handle complaints of Title IX sexual harassment or sexual violence – at a time when they were facing what can arguably be described as the most unprecedented disruption to the American education system the country had ever seen. The deadline for policy development work was set for August 2020, which left only a few short months and made it difficult to collaborate with stakeholder groups prior to implementation.
The 2020 regulations marked a departure from local and state control of sexual harassment and sexual violence response by schools. Key aspects of the 2020 requirements – applicable to both employee and student complaints – include:
- A new, three-part definition of sexual harassment: (1) quid pro quo harassment; (2) severe, pervasive AND objectively offensive conduct; and/or (3) a Violence Against Women Act crime – sexual assault (including both rape and fondling), dating violence, domestic violence, or sex-based stalking.
- The requirement to have a formal complaint (actual knowledge) signed by the complainant or filed on the complainant’s behalf by the Title IX Coordinator;
- Procedurally equitable treatment of all parties – including a presumption of innocence of the respondent throughout the process and supportive measures for all parties;
- Technically detailed requirements for noticing the parties regarding the allegations;
- Complex rules regarding the dismissal and consolidation of complaints;
- Cross-examination requirements;
- Increased transparency to all parties – including an exchange of evidence process requiring the release of a summary of the evidence collected; and
- A separate decision-maker, other than the Title IX Coordinator or investigator, to determine whether the school’s Title IX policy was violated (and, for higher education institutions, the requirement to do so via a live hearing).
If you feel exhausted just reading that partial list – you are not alone.
School human resources and student affairs professionals, student conduct/discipline administrators, and Title IX Coordinators across the country would likely agree. Overlay California’s own highly regulated school harassment and discrimination response and parsing out which process is applicable, and the whole task can seem overwhelming.
2024 Federal DOE Title IX Regulatory Changes & Litigation
In 2024, just in time for many education institutions to have adopted new policies and focus on ironing out workflow and operational snags related to the 2020 regulations, an entirely new set of Title IX regulations is introduced. A new presidential administration brought with it a new regulatory focus – and an eruptive litigation landscape that is still playing out in the courts.
The impact of the 2024 regulations can be generally described with one word – expansion. That includes:
- What qualifies as a complaint under Title IX and staff training requirements;
- Procedural options available to education institutions for investigation and decision- making, including variation in procedures for employee-only complaints versus those involving students;
- The definition of Title IX sex discrimination – including additional categories of misconduct, resulting in a definition more in alignment with California law (so severe or pervasive that it limits or denies a person’s ability to participate in the educational program), making the scope of conduct applicable to Title IX regulation larger than under prior regulations;
- Protections for LGBTQ+ students and staff – including clarifying that preventing students from participating in activities consistent with their gender identity violates Title IX if doing so imposes “more than de minimis harm” on the student; and
- Protections for pregnant students¹ – including specific procedures for providing accommodations/modifications for students to complete their program, rights regarding self- attestation of pregnancy, and limits on requests for medical documentation.
Summer 2024 saw multiple efforts to seek injunctions against implementation of the new regulations, primarily founded on an attack against the Biden administration’s expansion of the Title IX regulatory framework to include protections for LGBTQ+ students and staff.² Continuing into the fall and winter, a seminal case, State of Tennessee v. Cardona (January 2025) effected a nation- wide injunction of the 2024 Title IX regulations.
Importantly, the State of Tennessee injunction was not limited to provisions of the regulations relating to LGBTQ+ protections. The court enjoined the entirely regulatory framework, including the pregnant student protections that most Title IX professionals regarded as clarification or re-statement of rights pregnant students already had under Title IX.
Current Status of California K-12 Sexual Harassment & Sexual Violence Compliance
So, where are we now?
As of January 2025, a court in Tennessee has blocked the new 2024 Title IX rules.³ This means that schools are likely now required to follow the 2020 rules again for the time being. However, this could depend on continued litigation and new guidance from the Department of Education. Local education agencies should also be ready for more sweeping federal changes following another transition in the federal administrative government.
On January 31, 2025, we got the answer – the federal Department of Education issued guidance confirming schools must re-adopt policies compliant with the 2020 regulatory framework, which will be enforced by the federal Office of Civil Rights. The federal government has also issued guidance indicating that their enforcement of LGBTQIA+ protections will fundamentally shift from what we saw between 2020-2024, re-centering California state laws protecting employees and students from discrimination on the basis of LGBTQIA+ protected characteristics.
We may see continued litigation and additional guidance from the federal Department of Education, or state government offices. And, it is likely that local education agencies can expect more sweeping changes as the transition in the federal administrative government continues to unfold.
Notably, even though the federal 2024 regulations are blocked, California schools are still required to protect against sex discrimination under state law. Significantly, this includes protections for LGBTQ+ students and staff. Importantly, California’s Education Code already prohibits discrimination in schools based on gender identity, gender expression, and sexual orientation, and additional legislation prohibits California K-12 schools from requiring their staff to notify parents when students ask to change their gender identification.
California K-12 school districts should confirm whether their board policies and administrative regulations (“BP/AR”) are current, including for Uniform Complaint Procedures, Complaints Regarding District Employees, Non-Discrimination, Complaints Concerning Discrimination in Employment, Sex Discrimination/Sexual Harassment, Title IX Sexual Harassment, Whistleblower Complaints, Bullying, Pregnant Students, Non- Fraternization with Students, and Board Member Code of Ethics.
School districts will need to review whether they have adopted the pre-2020 sexual harassment BP/ARs, the 2020 policies, or the 2024 policies and consider options for policy revisions in light of the State of Tennessee litigation which purports to revert all educational institutions back to compliance with the 2020 policies. Decisions not to process cases under the federal 2020 regulations, or to continue to implement the 2024 version of policies should be made in consultation with legal counsel.
With regard to pregnant student policies in particular, school districts will need to decide whether to continue implementation of 2024 regulatory guidance in part or in full, given that the protections afforded by such provisions may still be applicable under Title IX.
How Small School Districts Can Weather the Storm
Regardless of which version of the regulations a small school district has implemented, grappling with compliance can be challenging with fewer administrators and tighter budgets. Some options available for small school districts to manage the risk of sexual harassment and sexual violence complaint procedures include:
Training & Staff Development
- Prevention through training programs for board members, staff, and students.
- Early risk management – handling matters at the lowest level possible generally results in cost- savings and a shorter complaint process.
- Proactive identification of key staff who could be called upon to investigate and determine policy compliance ahead of receipt of a complaint – and training them in general investigation best practices to make their skills more versatile.
Innovative Approaches to Grievance Process Administration
- Use of intake procedures to gather additional information so that options for processing complaints are fully explored, including in situations where there is no dispute of fact.
- Learning when an external investigator or decision-maker is necessary and using professionals with California-based harassment/discrimination expertise to save costs and create efficiencies in the process.
- Utilizing legal counsel to better assess risk and alternative options for approaching a particular situation, including the possibility of informal resolution.
- Joining forces – collaboration with neighboring small school districts to provide mutual support in this area when conflicts of interest or staffing levels make it difficult to round out the various roles needed to comply with policy.
Utilizing Community & Expert Resources
- Utilization of county offices of education for support.
- Consideration of early tendering to insurance carriers.
- Access free resources), such as SSDA workshops, other free webinars, and complimentary templates for reports and required notices.
- Negotiating with consultants and legal counsel for rates and fee structures that are sensitive to the unique constraints of small school district administration, including regional rates with neighboring districts.
If you need advice regarding harassment and discrimination guidance, investigations, or other labor/employment law or student law matters, the team at Emerzian Shankar Legal Inc. is ready to serve as your trusted legal partner sensitive to the concerns of small schools.
To download our complimentary Title IX tip guide, sign up for our Education Law e- newsletter, or check out our free Lunch & Learn Title IX Updates webinar, visit our website HERE.
To learn more about how we can support your district, contact Ashley at aemerzian@eslegalinc.com.
[1]These changes, in some key respects, mirrors the federal Equal Employment Opportunity Commission’s 2024 regulations on pregnancy protections for employees following the passing of the federal Pregnant Workers Fairness Act the federal PUMP Act, both of which went into effect in 2023.
[2] 26 states challenged portions of the 2024 Rules (namely, the protections for LGBTQ++ students). As a result of the litigation, 26 states, along with select schools in the remaining 24 states, were enjoined from enforcing the 2024 Rules, while remaining schools were required to implement the new rule.
[3] As of January 16, 2025, the Department of Education published information on its website stating that the 2024 Final Rule was not effective in any jurisdiction.
