559 . 779 . 4357
aemerzian@eslegalinc.com
559 . 394 . 3696
ishankar@eslegalinc.com
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.
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 marked a historic moment for Title IX when the Department of Education ushered in the implementation of the first federal Title IX regulations amid a backdrop of COVID-19 chaos, a rise in social justice movements spurred by violence, and widespread economic uncertainty.
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:
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.
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 students[1] – 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.
So, where are we now? That may depend on when you are reading this article.
As of January 2025, a court in Tennessee has blocked the new 2024 Title IX rules.[3] This means that schools are now required to follow the 2020 rules again for the time being. It is possible that we could see continued litigation in this area. However, local education agencies should also be ready for more sweeping federal changes following another transition in the federal administrative government.
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 to 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 the protections afforded by such provisions may still be applicable under Title IX.
Our attorneys are experienced, trained, and ready help you navigate our new Title IX compliance obligations along with California-specific legal requirements. We can assist you with:
Title IX training is recommended annually for most educational institutions, whether K-12, community college, or public or private higher education. Additionally, those involved in the grievance process – coordinators, investigators, decision makers, and appeal adjudicators – all need enhanced training in implementing Title IX obligations. We can provide in-person or virtual trainings to keep your internal team sharp on all things Title IX!
We are skilled at preparing comprehensive policies implementing Title IX and other applicable civil rights laws for your campus! Additionally, there are new recommended policy updates for pregnant and parenting students and employees in both K-12 and higher education settings. Let us help you ensure your polices are compliant and tailored for your specific institutions resources and staffing.
Often times determination of whether a complaint or concern is subject to Title IX regulation, or another civil rights policy, can be a complex question riddled with risk mitigation and operational concerns. Additionally, we are experienced at handling complex, multi-party, and cross-complaint situations that need careful consideration regarding whether to consolidate and the applicability of various policies and procedures to different aspects of a case. We can help you understand your options for how to process complaints involving harassment, discrimination, retaliation, or sexual assault in a manner consistent with law and in alignment with your organization’s systems and resources.
When processing a complaint of harassment, discrimination, retaliation or sexual assault, issuing various notices to the parties and witnesses is a key step in documenting compliance. We can assist your campus in preparing templates ready to go when a complaint comes in, or tailoring documents based on the unique nature of a particular case. We are experienced in drafting notices of investigation, informal resolution consent forms, interim correspondence regarding extensions or other procedural matters, responses to questions from attorneys or community advocates, notices of hearing and notices of decision. We can help bring peace of mind to your drafting process.
Whether you are currently implementing the 2020 TIX rules or 2024 TIX rules, or have implemented some combination of both, we are here to help assist you as questions arise during the grievance process. For example, what communication to the parties is required? What does a Title IX hearing look like under current policy? Should we outsource any part of the process? How do we handle allegations of bias or conflicts of interest? Can the complaint be dismissed based on a student withdrawal or employee resignation? What cost control procedures are appropriate or lawful in this case? We have seen it all! Let us help you strategically evaluate options, risks, and help you implement your organization’s business decisions.
We are skilled at conducting investigations. Our team of attorney-investigators and paralegal support staff provide high-quality, thorough, accurate, and legally compliant investigations for Title IX and other internal civil rights complaints, as well as complaints involving violations of student conduct policies or workplace misconduct. We can handle simple complaints as well as complex multi-party, high risk matters, including those involving high level administration, athletics, or sexual assault. Our attorneys are trained in trauma informed techniques, and both 2020 and 2024 TIX procedures. Hiring us means you can rest easy knowing your investigation process will be handled professionally, free of bias or conflicts of interest with either party. Our investigators are skilled at testifying at hearings and other administrative forums and stand ready to support your organization in the event of subsequent litigation.
Need a paper decision maker? Hearing officer to run your hearing? Or need a skilled Title IX attorney to help guide your internal hearing officer or panel to conclusion? We’re there for you! We can help you navigate the complex legal issues that arise when determining whether a Title IX or other policy violation occurred under 2020 or 20204 regulations. We can also advise on appropriate remedial and corrective action with an eye towards risk mitigation.
When a party appeals, we can help you get through the final push to ensure a compliant appeals review process. Whether you need behind the scenes advice or a front-facing external appeal adjudicator, we have you covered!
When the worst hits and your educational organization is in litigation, we can come along side your insurance defense counsel to provide insight into Title IX compliance and how it strategically impacts your case. We also provide expert witness testimony, and can assist with remedial action when needed assessing the options for policy revisions, staffing and resource allocation.
[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.
