Department of Education Is Reviewing and Seeking Comments on Title IX Regulations

In Executive Order 14021, President Biden stated a policy of guaranteeing students “an educational environment free from discrimination on the basis of sex. . .”  and instructed the Secretary of Education to review existing regulations and other policy documents within 100 days from the date of the order.  The executive order specifically identified the amendments to the Title IX regulations that took effect in August of 2020.

The Department of Education’s Office for Civil Rights (“OCR”) has recently provided some information on how it plans to proceed with that review. In a letter addressed to students, educators, and other stakeholders, OCR stated that it will be conducting a comprehensive review of the Department of Education’s regulations, orders, guidance, policies and other agency actions.  The letter also specifically identified the 2020 regulations as an item to be reviewed.

As part of the review, OCR will hold a virtual public hearing allowing both live and written comments.  The hearing will be held from June 7, 2021 to June 11, 2021.  In the hearing notice, OCR specifically requested comments related to the regulations related to sexual harassment and discrimination based on sexual orientation and gender identity. Due to the potential sensitive nature of the comments, there will not be a recording of the hearing, but a transcript will be posted on the OCR website.  The hearing notice also states that OCR will not share the personally identifiable information of commenter’s without first obtaining their consent.

The letter makes clear that the 2020 amendments are still in effect.  In addition to the public hearing, OCR has stated that it intends to issue a question-and-answer document to address its interpretation of the requirements of the 2020 amendments.  It plans to address where schools have discretion in the procedures they implement.

Furthermore, the OCR indicated it anticipates issuing a notice of proposed rulemaking to again amend the Title IX regulations after completing its review and receiving feedback.  The formal rulemaking process would allow the public another opportunity to comment after the notice is published.  Future rulemaking is likely to include specific protections from discrimination based on sexual orientation and gender identity.

The letter acknowledged the OCR’s responsibility to ensure schools provide a nondiscriminatory environment, including having grievance procedures for fair and prompt resolution of sexual harassment and discrimination reports.

The requirements of the formal rulemaking process limit how quickly the Department of Education can implement changes to the 2020 amendments, but it seems to be trying to move as quickly as those requirements and the desire for public comments will allow. In the meantime, the question-and-answer document will likely provide both clarification of the OCR’s expectations and some insight into how the rules may change.

Until the new rulemaking occurs, there is likely to be confusion in schools about the required procedures for investigating Title IX complaints.  If you have been accused of sexual misconduct and are or may become the subject of a Title IX investigation, you need an experienced Washington Title IX attorney protecting your rights throughout the process.  Set up a consultation with Blair & Kim, PLLC, right away by calling (206) 622-6562.

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