New Title IX regulations bring new costs

On August 1, new changes to Title IX regulations will go into effect. These changes expand the definition of sexual harassment and discrimination, remove barriers to reporting misconduct, and give educational institutions more autonomy over their complaint procedures, including the ability to return to a single investigator model and choose whether to hold live hearings.

To comply with the new regulations by the August 1 effective date, institutions can expect increased costs associated with updating their policies, procedures, and training. Additionally, the expanded scope of Title IX and increased flexibility in grievance procedures may impact costs in the longer term.

Costs based on compliance

As with any new law or regulation, there will be costs associated with initial implementation.

Specifically, schools must review new regulations, revise their training and policies, revise their grievance protocols, and update and publish new nondiscrimination notices. This initial overhaul of Title IX policies and procedures will likely result in significant administrative burden, time, and expense.

In addition, ongoing costs associated with training requirements may be affected by the new regulations. The Department of Education estimates that, despite the initial expense of updating the training program, recipients should not see an increase in time or annual training costs for staff other than the Title IX coordinator.

However, DOE anticipates that the new regulations will require longer and more extensive training for Title IX coordinators. Therefore, in addition to the initial one-time compliance costs, recipients can expect to see an increase in annual costs associated with compliance with the new regulations.

Increased scope of application

The new regulations expand the scope of Title IX in two ways that will likely increase the number of complaints and their associated costs.

First, the new rules no longer require a formal written complaint to initiate an investigation. One would expect that more investigations would likely be initiated on this basis.

Second, the new law expands the scope of what is considered discrimination and harassment. While the current law only addressed sex-based harassment in the form of quid pro quo harassment, hostile environment harassment, and clerical offenses, the 2024 amendments cover “all forms of sex discrimination,” including discrimination based on sex stereotypes, sex characteristics, pregnancy-related conditions, sexual orientation, gender identity, and parental, family, or marital status.

In addition, while current regulations require that conduct be both severe and pervasive to constitute harassment, the 2024 amendments provide that conduct that is severe or pervasive triggers Title IX obligations.

By expanding the scope of Title IX, recipients will likely experience an increase in the number of complaints and investigations—and, therefore, an increase in the costs associated with them.

Similarly, recipients can expect to spend more to provide supportive measures—intended to restore and preserve nondiscrimination in situations that do not require a formal investigation—given that Title IX will be triggered for a broader range of events.

There are also costs associated with accommodating pregnancy and related health conditions. The new rules require grantees to make “reasonable modifications” to accommodate students who are pregnant or have a pregnancy-related health condition, and to provide breastfeeding spaces for nursing students. Grantees may have to bear the costs associated with providing reasonable accommodations, including creating designated breastfeeding spaces, providing larger workspaces, allowing more frequent bathroom use, or providing temporary access to elevators.

However, these costs are likely to be minimal given the flexibility of the requirements. This means that there are no requirements for the size or design of the lactation space, nor is there a requirement that students have access to a space separate from the faculty. Therefore, recipients do not have to build new spaces to meet Title IX requirements.

In addition, the flexibility inherent in the concept of “reasonable modification” allows grantees to work within their budgets, adapting to student needs on a case-by-case basis. As such, grantees can save on costs by using resources they already have.

Second, the 2024 amendments expand the jurisdiction of Title IX. While under current regulations, investigations are limited to conduct that occurs within the recipient’s educational program or activity, the new regulations extend to off-campus conduct, including conduct that occurs outside the United States when it is alleged to have contributed to a sexually based hostile environment within the recipient’s educational program or activity.

In such cases, Title IX investigations can be more time-consuming and therefore more costly because investigators may need to access information in other countries.

Complaint Procedures

The new Title IX regulations give recipients more autonomy over their complaint procedures, giving them the flexibility to use a single investigator model and removing the requirement for a live hearing. This can help offset the costs of investigating more complaints because of Title IX’s expanded scope.

First, the single investigator model – in which a single person both investigates a case and decides its outcome – is likely to save costs by shortening the complaints process, increasing planning efficiency and enabling the single person with the most knowledge about the investigation to decide its outcome.

In addition, because the single investigator model is permitted but not required, grantees may choose to use this model if it saves costs or not use it if it increases costs.

Second, by eliminating the requirement for live hearings, grantees can eliminate the costs associated with hearings, including hiring and training appropriate staff, paying counsel, and, in the case of colleges, providing attorneys for parties who do not have an attorney when the other is represented.

As with the single-investigator model, grantees may of course choose to continue with live interviews if such a policy change proves too costly.

On the cost side, removing barriers to reporting could increase the number of Title IX complaints. As noted above, under the 2024 regulations, complainants are no longer required to report sexual harassment through a formal written complaint, with a “complaint” defined as any “oral or written request to a recipient that is objectively understandable as a request to investigate and determine alleged discrimination.”

This expanded definition is likely to further increase the number of complaints. However, as recipients have greater autonomy over their complaints processes, the cost of conducting more investigations may be offset by more streamlined processes.

Application

We expect that increased costs and compliance with the new regulations will impact schools differently depending on their size and resources, but recipients can expect to receive more complaints and conduct more investigations as a result of the expansion of Title IX, which will require greater use of resources.

Furthermore, a greater number of complaints may result in greater responsibility for handling them.

Updated complaint procedures can save recipients money by streamlining their policies on an individual basis. Ultimately, individual schools can assess which procedures work best—both for the institution and for students.

Kathleen E. Dion is chair of the Education Group at Robinson & Cole. Sabrina Galli is a member of the firm’s Commercial Litigation Group and Education Group. Erica Whaley is a member of the Summer Associate Class at Robinson & Cole.