On July 24, 2024, the United States District Court for the Eastern District of Missouri temporarily enjoined the 2024 Title IX Regulations, recently issued by the Department of Education under the Biden administration. As we wait for additional clarity from the Court about its ruling, it appears that the 2024 Title IX Regulations are now blocked from going into effect in Missouri on August 1, 2024.
The Court sided with six State Attorneys General who challenged the 2024 Title IX Regulations as contrary to law and exceeding the DOE’s authority. The Court ruled that the 2024 Regulations cannot go into effect until the final case is resolved.
The 2024 Regulations expand the scope of Title IX by including discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity within the definition of discrimination on the basis of sex under Title IX. The 2024 Regulations also amend the grievance procedures for complaints of sex discrimination and sexual harassment.
As Districts prepare for the upcoming school year, below is a brief overview of the current status of the Title IX requirements in the state of Missouri.
Q: What Title IX regulations should the school district follow now?
With the 2024 Title IX Regulations temporarily enjoined, the 2020 Title IX Regulations remain in effect. School district should continue to follow their current Title IX procedures, including the requirement that the Investigator and Decisionmaker for complaints of sexual harassment be two separate individuals (i.e., as outlined in existing Policy ACA and Policy 1301).
Q: Will this change affect what type of conduct falls under Title IX?
While the injunction is in place, school districts should continue to follow the current definitions of discrimination and harassment under Title IX, as articulated in the 2020 Title IX Regulations and the current district policies. For instance, this would include the definition of prohibited sexual harassment as unwelcomed conduct that is so “severe, pervasive, and objectively offensive” that it creates a hostile environment.
Q: Are there still protections for pregnant students and staff?
Yes. Although the 2024 Title IX Regulations regarding treatment of students or staff based on pregnancy or related conditions (e.g., childbirth, termination of a pregnancy, lactation, related medical conditions, and recovery) are enjoined, there are other laws protecting pregnant students and staff members.
For employee and job applicants, the Pregnant Workers Fairness Act requires a school district to provide a reasonable accommodation to an employee or applicant’s known limitation related to pregnancy, childbirth, or related medical condition unless the accommodation would cause the district an undue hardship. The Providing Urgent Maternal Protections for Nursing Mothers Act requires school districts to provide reasonable break time for employees to express breast milk for one year after the child’s birth each time the employee has a need to express breast milk. School districts must pay an employee for this time unless the employee is completely relieved from all job duties during the break time.
Missouri state law requires a school district to provide a minimum of three opportunities during a school day for a lactating employee, teacher, or student to express breast milk, breast feed a child, or address other needs relating to breast feeding. School districts must have a Lactation Room with ventilation, a locked door, work surface, chair, and outlets, and the room must be close to a sink and a refrigerator for breast milk storage.
Additionally, students or staff may develop a temporary disability during pregnancy. School districts should be mindful that, while pregnancy itself is not an impairment, it could be considered a temporary disability under Section 504 or the Americans with Disabilities Act if the pregnancy or related condition substantially limits one or more major life activities for an extended period of time.
Q: What is an employee’s reporting obligation under the 2020 Title IX Regulations?
Any staff member in a K-12 school district has an obligation to report to the Title IX Coordinator when they have “actual knowledge” of sexual harassment.
The District must respond to reports in a way that is not “deliberately indifferent” to sexual harassment.
Q: Does this ruling affect athletics?
No, the Department of Education stated they will release a separate regulation in the future regarding sex-separated athletics. In April 2023, the Department of Education released a proposed change to the Title IX Regulations impacting transgender students’ eligibility for athletic teams. The proposed regulation would allow school boards to adopt regulations regarding transgender athletes’ participation in sports based on their gender identity, so long as the policies meet certain criteria including considerations of the type of sport, level of competition, and grade level. However, the DOE has not yet issued a final regulation on athletics.
Q: What Title IX training is required for the 2024-2025 school year?
The 2020 Title IX Regulations require Title IX Coordinators, Investigators, Decisionmakers, and Informal Resolution Process Facilitators to have specific training, including training on the definition of sexual harassment, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process, how to serve impartially, and how to determine issues of relevance. This training material must be posted publicly.
Q: What happens next?
The temporary injunction in Missouri is in place while the lawsuit brought by the Missouri and Arkansas Attorneys General is pending final resolution. The Department of Justice has petitioned the Supreme Court of the United States to take emergency action to limit the scope of the injunctions around the nation to only the provisions regarding sexual orientation and gender identity, and to allow the new grievance procedures regarding sex discrimination to take effect.
Please reach out if you have further questions or would like to schedule a Title IX training.
Mickes O’Toole
314.878.5600 | www.mickesotoole.com
Natalie Hoernschemeyer | [email protected]
