Reed Smith News Flashes

The Biden-era Title IX rule is finally here. While there is plenty to digest, this alert is meant to address the immediately pressing questions.

What now?

While the rule does not go into effect until August 1, 2024, there are many actions institutions will need to take starting today. This rule will require an overhaul of Title IX policies, including a new definition of sexual harassment and new procedures for investigating Title IX violations, which will require review and sign off at many levels.

Immediately, there will also be questions from students and campus communities that require sensitivity and a thoughtful response. Many stakeholders have been pushing for the new Title IX rules to take effect much sooner than August. There are others that will be pushing to keep the Trump-era policies in place. Campus leaders will need to communicate intentionally with their communities about what can be done before August 1, 2024, and what will be done thereafter.

It’s especially important to communicate that these policies are not retroactive on most campuses—or for Department of Education enforcement—meaning that the rule or policy in place when the alleged Title IX violation occurred (not when the report was made) is most often the rule or policy that any investigation will proceed under. As the new rule makes clear, “the Department will not—and does not have the authority to—enforce these final regulations retroactively; they apply only to sex discrimination that allegedly occurred on or after August 1, 2024.” Most institutions also enforce policies on a prospective basis, particularly regarding the definitions of prohibited conduct (i.e., investigating misconduct as it was defined at the time of the alleged incident). This is an important consideration for messaging to campus communities and for training your employees that are tasked with enforcing these policies.