July 21, 2021
Yesterday, OCR issued the long-awaited FAQs on the Title IX regulations. The Q&A on the Title IX Regulations on Sexual Harassment was issued in the wake of the Department of Education announcing its intent to revisit the Title IX Regulations, with a target deadline of May of 2022 for release of the proposed rule. Despite the DOE’s revisiting of the regulations, and anticipated changes, the new 67-page Q&A is largely a recitation of the 2020 Title IX regulations (including the preamble) and simply highlights that the department intends to enforce the legally binding regulations as they were written until OCR is able to make formal changes. Thus, districts and institutions must continue in their compliance efforts under the current regulations for this academic year.
A few items of note:
1. The regulations still apply. The Q&A is reinforcement that the Title IX regulations still apply. Thus, school districts and institutions should be ensuring that they are meeting the requirements of the regulations, including mandated training of their Title IX team.
2. Q&A is guidance. The Q&A is a guidance document, meaning that it does not have the force and effect of law as emphasized in the Q&A and therefore is “not meant to bind the public.”
3. Example policy language. The Appendix to the Q&A contains example policy language; however the “Department does not endorse these provisions in particular.” Moreover, “[a]doption of one or more of the examples from this Appendix alone does not demonstrate compliance with Title IX.” Regardless, this may be the most useful portion of the Q&A.
4. Application of the regulations pre-August 14, 2020. The Q&A states that the 2020 regulations are “not retroactive” and that a school must follow the requirements of the Title IX statute and regulations in place at the time of the incident. Note there is case law that is not consistent with this interpretation. It also acknowledges that OCR’s guidance documents were rescindened in 2020 but that they remain accessible “to the extent they are helpful to schools when responding to earlier allegations of sexual harassment.” (Question 13)
5. Response to sex discrimination allegations. The Q&A addresses OCR’s expectations on how a school responds to complaints alleging sex discrimination that do not include sexual harassment allegations, stating “The 1975 regulations, which are still in place today, require schools to have a Title IX Coordinator to receive complaints of sex discrimination and require schools to respond promptly and equitably to such complaints.” (Question 64). It therefore behooves schools to ensure that they have a clear understanding of how they will address sex discrimination and that the process is clearly outlined in its policies and procedures.
6. Statements by parties who do not participate. While the Q&A largely re-constitutes the regulations, there are a few areas that contain some interesting interpretations by OCR and/or reinforcement of some of the pain points schools have faced in complying with the regulations. For institutions, note Questions 51- 54 regarding the treatment of statements by parties who do not participate in cross-examination in a live hearing, and an interpretation that the role of an advisor could be limited to questions drafted by their party in Question 43.
7. Title IX Coordinator signing a formal complaint. The Q&A explains that the Title IX Coordinator MAY file a formal complaint even if the complainant is not associated with the school in any way. Further, it says, “in some cases, a school may be in violation of Title IX if the Title IX Coordinator does not do so…” Put simply, there are circumstances when a Title IX Coordinator may need to sign a formal complaint that obligates the school to initiate an investigation regardless of the complainant’s relationship with the school or interest in participating in the Title IX grievance process. This is because the school has a Title IX obligation to provide all students, not just the complainant, with an educational environment that does not discriminate based on sex.” (Question 24). Note also OCR’s interpretation of “attempting to participate” for complainants. (Question 23)
8. When a respondent is no longer with the school. The Q&A explains reasons a school district or institution may choose NOT to dismiss a formal complaint if the Respondent is “no longer enrolled or employed” by the school district or institution. OCR stated, “proceeding with the grievance process could potentially allow a school to determine the scope of the harassment, whether school employees knew about it but failed to respond, whether there is a pattern of harassment in particular programs or activities, whether multiple complainants experienced harassment by the same respondent, and what appropriate remedial actions are necessary.” (Question 27)
9. Notice. The Q&A reinforces that employees of school districts are deemed to have actual knowledge that triggers a response by the district “if they are on notice of conduct that could constitute sexual harassment.” There has been recent litigation on this issue as well. Bottom line, ensure you are training your employees on what may constitute sexual harassment, how they may be on notice of such conduct, and where to report. ICS provides such training and has seen first hand that this is often overlooked by districts, but imperative not only to ensure your district complies with Title IX but also to ensure your district is providing a safe learning and working environment for students, teachers and staff.
10. Business as usual. Other matters are addressed, such as how a school should determine how to investigate off-campus conduct and the appropriate length of time that a school should take for an investigation of a complaint, but they all generally mirror the regulations. In short, there is little that is contained in the Q&A that we did not already know from the regulations and the preamble.
As Title IX professionals scramble to prepare for a return to in-person learning and working this academic year, and ensure that their compliance efforts are shored up, our advice is that Title IX Coordinators should continue the on-going efforts to be compliant with the Title IX regulations, revisit their policies and procedures to verify that their school is clear on how it will respond to sex-based harassment and non-Title IX sexual harassment, and adequately train and lead their Title IX team. Our 2021 Refresher and Update Courses incorporate any new guidance, such as the Q&A, and I will be covering the Q&A and more in my Back to School: What’s Next in Title IX webinar August 12th. Register today! (Higher Ed / K-12)
Count on ICS to keep you in the know about all the latest in Title IX. ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.