Putting Policy Into Practice Series: Blog Post 6

New Title IX Rules: OCR Does Not Require Retroactive Application, But Courts Might

As universities, colleges and schools worked diligently over the summer to put new policies and procedures in place by the August 14 implementation deadline for the new Title IX regulations, OCR released a blog on the retroactivity of the new regulations. Issued on August 5 and titled “The Title IX Rule is Effective on August 14, 2020, and is Not Retroactive”, the OCR blog said the following:

As schools plan and prepare for implementation of the new Title IX Rule, which is effective on August 14, 2020, the Office for Civil Rights (OCR) has received a number of questions regarding whether the Title IX Rule applies retroactively. It does not. OCR will enforce the new Title IX Rule only when it becomes effective, and will enforce the new Rule prospectively. 

Consistent with the Department’s statements in the preamble to the Title IX Rule regarding non-retroactivity, the Rule does not apply to schools’ responses to sexual harassment that allegedly occurred prior to August 14, 2020.  The Department will only enforce the Rule as to sexual harassment that allegedly occurred on or after August 14, 2020.  With respect to sexual harassment that allegedly occurred prior to August 14, 2020, OCR will judge the school’s Title IX compliance against the Title IX statute and the Title IX regulations in place at the time that the alleged sexual harassment occurred.  In other words, the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.

And yet, Title IX practitioners are now faced with a contradictory court ruling issued October 16th by the Northern District of New York in Doe v. RPI.  This case concerns an event of alleged sexual assault that took place in January of 2020. Doe disagreed with RPI’s findings, which concluded August 11, 2020. His request for an appeal and challenges to the procedures to be used for his disciplinary hearing took place after August 14. As described by the Court in its October 16 decision, “Doe and his counsel, naturally interested in the new rules’ additional protections for students accused of sexual assault, spoke to defendant’s Title IX coordinator to request that the remainder of his investigation and his impending disciplinary hearing be conducted under the 2020 policy. Citing the OCR post, defendant’s Title IX coordinator responded that his hearing would follow the 2018 policy because the new rules were not retroactive.”

Doe objected to RPI’s continued use of its previously existing 2018 procedures for the disposition of his case and filed suit in N.D.N.Y, requesting a preliminary injunction preventing RPI from using is 2018 procedures. The Court ruled in Doe’s favor, saying that defendant RPI should use its new procedures for the remainder of Doe’s case.

In reaching its decision, the Court seemed troubled that RPI was choosing the administrative headache of maintaining two separate procedures – one for pre-August 14, 2020 cases and one for post-August 14, 2020 cases – particularly when the new procedures provide for more due process safeguards:

[RPI] decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts.

The Court also continued,

Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action. That is precisely what RPI did in this case.

Takeaway: We have been following OCR guidance in our own guidance to clients and Community Partners. Nonetheless, courts are not bound to follow OCR guidance. While OCR won’t penalize a school for using previous Title IX procedures to investigate alleged misconduct pre-dating August 14, a court might. And while other courts may reach a different conclusion, institutions subject to Title IX should carefully consider whether to maintain two separate policies for conduct that occurred before and after August 14, 2020. As a team we will be re-evaluating our advice going forward in light of this court ruling.  Bottom line, the Title IX landscape continues to shift and we will continue to be responsive to these shifts.

Need assistance implementing your new Title IX policies and procedures? Contact us for more information.