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ATIXA’s Guide to Complying with the 2020 Regulations (Again!)

An ATIXA Tip of the Week by Brett A. Sokolow, J.D.

This week, I shared with USA TODAY that administrators face “regulatory whiplash” while navigating conflicting federal policies from one administration to the next. The Trump administration’s bevy of Executive Orders has revoked protections for LGBTQIA+ students, undermining federal safeguards related to sex and gender. As a result, schools and institutions are scrambling for clarity while maintaining Title IX compliance.

As practitioners and administrators navigating the January 9th vacatur of the 2024 Title IX Regulations, a clear roadmap is essential. ATIXA offers you the following suggestions:

  • Consult with counsel to devise a game plan
  • Communicate any P&P shifts clearly to your community and explain why this is necessary
  • Work with any campus/school policy groups and stakeholders, as necessary
  • If you intend to redo/revise any current or past complaint resolutions, make appropriate notifications, accordingly
  • Remove your 2024 P&P everywhere you have published them
    • Unless, in consultation with counsel, you decide to continue to have them applicable to incidents occurring between August 1 and January 9
    • Maintain a copy in your policy archive in the event that they ever need to be accessed in the future
  • Center your 2020 Regs-based P&P online and in handbooks
    • If you don’t have 2020 P&P in place, implement them ASAP
    • They were required to be in place on January 9, 2025
  • If you have 2020 P&P, but they have not been updated since 2020, work with counsel to review and revise
    • As noted above, you can benchmark them against ATIXA’s model P&P if helpful (all of which are freshly updated)
  • You should seriously consider how you want to frame your Process B going forward. The 2020 Regs give schools total flexibility to define how Process B should work, and since most complaints at most schools will fall under Process B rather than A, Process B is worth your time and attention right now
    • Process B may look a lot like your 2024 process, depending on how you’ve structured it
    • Higher education institutions need to ensure their Process B is compliant with VAWA’s process requirements, as well
  • Make sure all members of your Title IX Team are trained in 2020 standards and your respective P&P
    • Don’t forget the Fair Housing Act standards, if applicable
    • Don’t forget the VAWA standards, if applicable
  • Retrain/refresh investigators on the 2020 standards
  • Move away from investigator-led decision-making
  • Re-implement the creation of investigation reports, if you moved away from this practice
  • Re-implement the ten-day review periods under the 2020 Regs, and anticipate this will again cause resolution processes to take longer
  • Consider narrower applicability of informal resolution under the 2020 standards than 2024’s
  • Re-implement live hearings under Process A (if necessary)
  • Reclassify mandated reporters based on 2020 standards
    • Unfortunately for K-12, this means your counselors are not confidential for Title IX purposes, as they were under the 2024 Regs
  • Consider the significant jurisdiction differences between 2024 and 2020 and adjust accordingly
  • Reinstate a webpage where all training materials are provided to the public
  • Reinvigorate your advisor program. The 2020 Regs include wider advisor mandates than 2024 did
  • Don’t worry anymore about complaints that span both 2020 and 2024 regulatory regimes. There is no 2024 regulatory regime any longer, and 2020 will apply to all incidents from August 14, 2020, until further notice
  • If you have 2020 Title IX regulatory or process questions, see ATIXA’s reg-based resource page
  • If you are looking for OCR guidance on the 2020 regulations, ATIXA maintains an online archive of OPEN Center responses from OCR to questions that members have asked
  • Remember that pregnancy protections, LGBTQIA+ rights, and disparate treatment may still have robust protections under Title IX, state law, or federal law, even if they are not part of the 2020 Regs
    • The 1975 Regs also still apply!
  • Let us say that again, because it’s really important. The 2024 Regs did not create Title IX rights to be free from sexual orientation or gender identity-based discrimination. They clarified them. Those rights will continue under Title IX (or state law, or the Constitution) in many jurisdictions despite not being recognized formally by the 2020 Title IX regulations
    • Expect the Trump Administration to continue limiting these protections early in the new administration
  • Stay tuned to ATIXA for updates as new Title IX cases and changes occur in the upcoming Trump Administration
  • Contact ATIXA to discuss how we can help you navigate these changes.