President Biden issued an executive order requiring the review of regulations, guidance and other documents related to Title IX investigations. The order proclaims a policy of the administration that students be guaranteed freedom from sex-based discrimination, including sexual harassment, in the educational environment.
The executive order requires the Secretary of Education and the Attorney General to review all current regulations and other agency actions within 100 days from order’s date, March 8, 2021. Upon completion of the review for consistency with the policy stated in the order, the Secretary must report the findings to the Office of Management and Budget Director. The order specifically requires the Secretary to review the Final Rule published on May 19, 2020, and all agency actions taken under it for consistency with the policy stated in the order, Title IX, and other applicable law. The order further requires the Secretary to review any current guidance and issue any needed new guidance regarding implementing the Final Rule to be consistent with the law and the policy stated in the order, “[a]s soon as practicable.” The order also directs the Secretary to consider “suspending, revising, or rescinding” agency actions that are not consistent with the policy as soon as practicable.
The order directs the Secretary to consider actions to enforce the policy and legal prohibitions against sexual harassment to the extent allowed by law. The order further instructs the Secretary to consider enforcement actions accounting for intersectionality. Finally, the order instructs the Secretary to consider actions to ensure “fair and equitable” procedures in schools.
The Final Rule, which took effect August 14, 2020, affords students accused of sexual harassment certain procedural protections. The Final Rule includes certain notice requirements and requires schools to give the parties opportunities to review evidence. Post secondary institutions must allow live hearings. One controversial aspect of the Final Rule is the requirement that post secondary institutions allow the accused student to cross-examine the complainant through an advisor.
The executive order does not rescind the 2020 Final Rule, so its protections will remain in effect until additional guidance is published. Based on this executive order, additional changes to Title IX investigation requirements are to be expected, but those changes have not yet occurred. It is unclear at this time exactly what those changes will be or what form they will take. It is possible the new administration will choose to keep some of procedural protections in the Final Rule to ensure compliance with due process requirements.
Given the ongoing confusion and repeated changes in what Title IX requires, it is more important than ever for a student accused of sexual harassment or sexual misconduct to be represented throughout the investigation and disciplinary proceedings by an attorney experienced in Title IX defense. In addition to receiving pressure from both sides, some schools and their Title IX officers may be sincerely uncertain about procedural requirements apply to them until additional guidance is published. If you have been accused of sexual harassment or sexual misconduct, schedule a consultation with a skilled Title IX attorney at Blair & Kim, PLLC, by calling (206) 622-6562.