Recodification of Title IX Regulations
On September 29, 2026, the U.S. Department of Education released a final rule entitled, "Recodification of Title IX Regulations." This action removes the outdated 2024 regulations (which were invalidated by a court on January 9, 2025) from the Code of Federal Regulations and replaces them with the currently-effective 2020 regulations—with the exception of one sentence.
In 2021, a federal court vacated a portion of the rule that stated, "If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility." 34 CFR 106.45(b)(6)(i). The court did not vacate the rest of that sentence, which read, "provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions." However, in recodifying the 2020 regulations, the Department has elected not to include the portion vacated by the court in 2021 or the remainder of the sentence. Their authority to do so is unclear.
Other minor, non-substantive changes were also made in the recodification, but the missing clause as noted above is the only substantive change of which we are aware. Consult with legal counsel regarding whether a policy change is necessary or advisable, particularly given state law in your jurisdiction.
