The Department of Education (“Department”) Office of Civil Rights (“OCR”) recently issued a Questions and Answers document providing guidance on Title IX sexual harassment regulations. In addition to a number of questions and answers about the regulations, the 67-page document provides examples of Title IX procedures for elementary schools, high schools, colleges, and universities. The document makes clear that the 2020 regulations remain in place for now, but provides some insight into how the current administration may interpret those regulations until it implements its own amendments.
Answer 13 makes clear that the 2020 amendments are not retroactive and schools should apply the Title IX requirements in place when the alleged incident occurred, regardless of when the school responded. The answer also refers schools to various guidance documents that were previously rescinded, indicating they may be helpful to schools handling allegations of sexual harassment occurring before the effective date of the 2020 Final Rule.
Actions Beyond the Regulations
Question 2 addresses whether a school may take steps beyond those set forth in the 2020 Final Rule. The answer provides that the school may take additional actions that do not conflict with Title IX or the regulations. Question 7 and its answer also address alleged sexual misconduct that does not meet the regulations’ definition of sexual harassment. The answer clarifies that the school may respond to reported sexual misconduct that occurs outside the United States or outside the education program or activity. Schools may take action against sexual misconduct that does not fit the definition of sexual harassment. The answer clarifies OCR’s position that Title IX does not prevent a school from addressing misconduct that does not meet the definition of sexual harassment by enforcing its code of conduct.
Answer 24 states that a Title IX Coordinator may file a formal complaint when the complainant is not associated with the school and does not want to participate in the process. Answer 24 further provides that failing to file the complaint may be a Title IX violation in some circumstances. A school may be found to be “deliberately indifferent” if the Title IX Coordinator does not sign a formal complaint when the school “has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority.” The school may need to initiate an investigation even if the complainant does not have a relationship with the school or want to participate in the Title IX process because the school’s obligation to provide a discrimination-free educational environment extends to all its students, not just the complainant.
Answer 43 states that the preamble to the 2020 Final Rule allows a school to implement rules regarding the conduct of the hearing that apply equally to the parties. Referencing the language in the preamble stating an advisor’s role in cross-examination is satisfied when the advisor asks questions on behalf of the party, the answer states a “postsecondary school could limit the role of advisors to relaying questions drafted by their party.” Answer 44 states that a school may prohibit advisors from asking questions “in an abusive, intimidating, or disrespectful manner.” Furthermore, if a party’s chosen advisor does not comply with the decorum rules, the party may be required to use a different advisor. Taken together, these answers allow schools to significantly limit the role of an advisor and the advisor’s ability to properly cross-examine witnesses and ask follow-up questions.
On August 24, 2021, OCR also issued a letter addressing the federal court’s decision in Victim Rights Law Center et al. v. Cardona. The court generally upheld the 2020 Final Rule, found part of 34 C.F.R. § 106.45(b)(6)(i) was arbitrary and capricious. The court vacated the provision prohibiting the decision-maker in a live hearing from considering statements that were not subject to cross-examination. The letter states that the Department will immediately stop enforcing that provision. The letter clarifies that decision-makers may now consider statements that could otherwise be considered under the regulations, even if the speaker will not be subject to cross-examination at the hearing. The decision-maker may consider statements made during the investigation, or in email or text. The decision-maker may also consider various other documents, including police reports and medical reports. The letter notes that OCR is still in the process of reviewing Title IX pursuant to the March 8, 2021 Executive Order and that it expects to ultimately amend the Title IX regulations.
Seek an Experienced Title IX Attorney
Given the changing landscape of Title IX requirements and procedures, schools are uncertain of the applicable procedural requirements. It is now even more important than ever for any accused student to have a knowledgeable Washington Title IX defense attorney guiding them through the process and protecting their rights. If you are facing a Title IX allegation, call Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.