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We’re in the Middle of a Title IX Investigation Based on the 2024 Regs… What Now? 

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

Go Back!

In the infamous words of Diane at her graduation speech in (the now ancient/classic movie) Say Anything, “I have glimpsed our future, and all I can say is… go back.” That’s right, ATIXA has glimpsed the future of Title IX litigation as well, and we agree with Diane. The safest course for schools subject to Title IX may be to go back and reframe any ongoing investigation or resolution process to conform to the 2020 Regulations, even if you started it under a 2024 Regs-based set of policies and procedures (P&P).

Redo, Revise, or Stay the Course?

What does “going back” look like? In some situations, institutions may need to be prepared to “redo” parts of an investigation, or shift charges slightly, but for many situations, “reframing” may be all that is necessary to keep an investigation moving forward while explaining process changes (like a shift back to a live-hearing for higher education) that may need to occur. For both K-12 and higher ed, this reframing often starts with internally examining jurisdiction and then sending an updated notice of investigation and allegations (NOIA) externally to the parties.

Let’s consider an example where you have received a complaint of sex-based harassment that occurred on August 2, 2024, off campus. You have a broad off-campus jurisdiction provision in your 2024 P&P, and you’ve taken jurisdiction over this complaint on that basis. Now, you need to look at reframing that investigation from a 2024 process to a 2020 process. In doing so, you realize the complaint will now be outside of 2020 Title IX jurisdiction, when it was within jurisdiction under the 2024 Regs. Thus, you are now required to dismiss it. You’ll do so, notify the parties accordingly, and offer appeals as required. Then, you can reinstate the complaint to your alternative process (“Process B” or whatever you call it) and resolve it under your P&P applicable to your Process B.[1] If you don’t have a Process B, you cannot address the complaint, so the dismissal will have permanent effect. Alternatively, you could (and should) implement a Process B now so that you continue to have the same flexibility to address off-campus misconduct that you likely have currently under your 2024 P&P.

Perhaps a Redo Isn’t That Big of a Deal?

It may seem overwhelming to restart a process, but we don’t think a full restart will be necessary in most cases. While there are significant changes in jurisdiction, investigations under the 2020 and 2024 processes are very similar. However, when it comes to adjudication, any college or university that removed live hearings and cross-examination under 2024 guidelines will need to consider switching back to a live-hearing approach mid-course.

What would this look like? The “redo” or “reframe” would entail revising the NOIA to inform the parties of the shift and providing them with the new P&P that will be applied to the complaint. You might provide a brief pause in the process to allow parties and advisors to absorb this change and a chance to request to meet with the Title IX Coordinator to review any process changes that may impact how the complaint is resolved. If the complaint is dismissed under the 2020 Regs, it’s likely that the process to which you are referring the complaint (Process B) will be quite similar to the process that was in place under the 2024 rules, thus requiring only minor modifications and notifications thereof.

Live Hearings

The biggest change in the grievance or resolution process will be for complaints not set for a live hearing that could now be subject to one. That scenario, which almost exclusively will apply in higher ed settings, could cause some complainants a significant degree of distress, and some may not want to proceed. While we doubt most respondents will object to being provided a live hearing, we don’t want to assume, and it’s possible some could either object to the change or to any change applied mid-process. We know that’s not an ideal approach, but we think the balance of risks makes shifting back to a live-hearing approach safer, legally.

Effect of Vacatur

Our advice is based on how Judge Reeves couched his order in Tennessee v. Cardona, on January 9, 2025, which is the decision that ended the 2024 Regs as we knew them. Judge Reeves explained that he was not enjoining the regs but vacating them (with an order called vacatur). Vacatur has the effect of voiding the regs because they were determined to be unlawfully issued. Judge Reeves has found them to be unconstitutional on several bases, beyond the scope of the Department of Education’s authority to issue, and in violation of the Administrative Procedure Act (APA). Sticking with the 2024 Regs after January 9, 2025, means sticking with standards deemed unlawful and unconstitutional by a federal judge. That’s not just bad optics; it also opens the doors to respondents challenging any ongoing or past application of the 2024 Regs as unlawful. While Reeves’s decision could be overturned or narrowed on appeal, we doubt that will happen.

Impacts on Respondents

Why are we concerned that respondents may sue? From a respondent’s perspective, they are now entitled to a live hearing if enrolled at a college. The argument that the 2024 Regs applied from August 1, 2024, until January 9, 2025, is undercut by vacatur. The 2024 Regs were never lawful, so there is no viable argument that the law requires schools to adhere to them, in the past or present. If respondents don’t get a live hearing, they could bring a due process lawsuit (if enrolled at a public university), or a breach of contract claim at a private college. In the latter case, the argument would assert that failing to offer a live hearing is a breach of the covenant of good faith and fair dealing, as some courts have previously ruled. Why risk such lawsuits?

Impacts on Complainants

Complainants may not like participating in a live hearing (though they don’t have to show up, of course), and we have sympathy for that. Starting a process you think you can handle only to have the rules shift mid-process can feel very discouraging to a complainant, can breach trust, and is not very trauma-informed. Alternatively, maintaining a 2024 process risks that a court will later overturn the decision if the respondent sues. That’s not good for a complainant, either, as the court’s remedy could be to reverse the finding or order a live hearing anyway. We can communicate this carefully (and accurately) to position the court as the antagonist in this shift, rather than the school or college, which could be a strategic way to present the matter to members of our educational communities. However, we fear complainants will feel betrayed no matter what. Thus, it is perhaps best to acknowledge this transparently from here on, clarifying that this change is the result of a court order, not a decision made by the college/school. We recognize that the approach outlined here is less than ideal for some or all parties to the process, but it may put a finger in the dike for what might otherwise cause a flood of lawsuits.

Consult with Counsel

As with many situations like this, where the implications of a court’s order are not entirely clear and won’t be fully understood without additional litigation, it’s always wise to consult your legal counsel. In fact, there are quite a few twists you may encounter that will require that kind of consultation. For example, if you have an informal resolution underway between a student complainant and an employee respondent at a college or university, and you switch from the 2024 Regs to the 2020 Regs mid-resolution, are you allowed to continue the informal resolution? The 2024 Regs permit it, but the 2020 rules do not. Or suppose you have (unwisely) eliminated investigation reports under your 2024 approach and have completed an investigation that is about to be referred for decision. By switching to 2020, you’ll need to pause the process, write an investigation report from your current summary, and then subject it to the two ten-day review and comment periods that are part of the 2020 approach that are not part of the 2024 approach. Will this slow down your process? Yes, it likely will, so you want to explain that fully to the parties as you make a mid-process shift to ensure that there are clear expectations and that we can minimize further surprises.

This Feels Kinda Craptastic!

If schools and colleges persist with applying the 2024 Regs, we expect many respondents will sue for injunctions to stop them. If schools and colleges persist with the 2024 Regs for complaints currently underway, could we see a raft of suits filed by respondents who have been previously adjudicated between August 1 and January 9, arguing that their “convictions” are unlawful? Sure, but we could still see that no matter what P&P we follow now, and if we make a shift to 2020 for our current complaints, doing so likely provides fodder for any respondent to claim that any historical outcomes from August 1 to January 9 under 2024 rules were unfair and unlawful.

We suppose complainants could make similar claims, though it is likely a steeper slope for a complainant to prove that 2020 Regs would have treated them more fairly or would have led to effective remedies that a 2024-based resolution did not. We also don’t see much reason to be concerned about suits by respondents who were cleared of Title IX allegations, so any audit you do of risk exposure should probably focus on those historical situations where a respondent was found responsible without a live hearing, or where you believe that a finding under the 2024 definition of sex-based harassment would not come to the same result if the narrower 2020 definition of sexual harassment were applied. Often, the appeal requests of such respondents (made at the time of the original determination) may offer you some insight into the kinds of arguments they might make to have their findings overturned now.

A Novel Approach

One novel approach that has been suggested is that rather than re-visiting all complaints that have been completed under the 2024 Regs, we might instead open a new appeal opportunity for the parties to argue they were not treated fairly (a procedural irregularity) by the historical application of the 2024 rules, and that treating them fairly (under the 2020 rules) would now result in a different outcome. If they file that appeal and prove it, you could re-open/redo only those complaints that are now successfully appealed. For some schools, that might limit the scope of how much needs to be redone or revisited. Ultimately, if you stand by a 2024 Regs-based outcome, you need to be prepared to argue that shifting to 2020 would not change the outcome. Audits by experts could help you to assess this.

Control Risk Exposure with Case Audits

ATIXA recommends engaging in an audit of complaints received under the 2024 Regs. By working with legal counsel, or even a TNG Expert, you can use the data on the number and type of complaints, current status (ongoing or complete), and other information to evaluate what level of exposure you have. However, because of the immediacy of this regulatory shift, time is of the essence, and it would behoove most institutions to make a decision sooner rather than later. TNG has already begun the audit process for dozens of institutions and can help you quickly identify the risks that you may be facing by “doing nothing” and how much work will be needed to “reframe” those investigations that are ongoing or complete, as described above.  

What If We Changed Nothing?

What if you decided to stay the course and complete your open complaints under the 2024 process? You might not get sued or challenged, and we never suggest that it’s ATIXA’s way or the highway. We’ve evaluated competing consequences and suggest that one option is safer while acknowledging that different communities have different priorities and politics that merit different perspectives. We’re trying to provoke an important conversation, at least, and prompt serious discussions about this at the individual school and college levels.

ATIXA is Here to Help!

If ATIXA can offer any help or support as you process these momentous changes, please do not hesitate to call on us. Please contact our team at inquiry@tngconsulting.com.

Remember, this Tip of the Week includes a process discussion, but policy changes are needed as well to shift from the 2024 framework to 2020. Consider revisiting ATIXA’s 2020-based model policies and procedures (1P2P, AMPP, and K-12 AMPP) that were all updated in late 2024 for best practices, compliance, and risk management.


[1] In ATIXA-speak, Process A is the § 106.45 formal resolution process as promulgated in the 2020 Regulations. Process B is any alternative process that a school uses outside of Title IX to address a complaint of behavior that would otherwise fall under Title IX but for its narrow jurisdictional rules. Process B can include processes that are housed in other areas or departments.