With the change in Presidential administrations, the U.S. Department of Education has recently updated its website for Title IX information and resources. Most importantly, the new policy page displays an undated “Fact Sheet” including a ten-point list of “Protection for Survivors.” These protections were already part of the Title IX regulation, but the Department’s emphasis on them certainly points to a new direction in its enforcement priorities.
The policy page begins with over a dozen resources that the Department has developed over the past year to explain the Title IX regulation, including the Final Rule itself, summary explanations, Q&A documents, and webinars. It also includes three important OCR blog posts about retroactivity, the use of “statements” at the hearing, and the requirements about what materials must be posted on institutional Title IX websites. And it includes a link for individuals to initiate the OCR complaint process.
It then has a three-part “Fact Sheet” describing three major components of the regulation. First, the Fact Sheet highlights that sexual harassment is a form of sex discrimination prohibited under Title IX, and that dating violence, domestic violence, and stalking all fall within this definition. Second, the Fact Sheet points to ten “Protections for Survivors” that are provided under the statute and regulation. Third, the Fact Sheet briefly summarizes the procedural requirements for a campus grievance process, such as the right to a live hearing with cross-examination.
While the Fact Sheet covers familiar ground, it’s worth noting that the Department’s use of the term “survivor” on the Fact Sheet is very different than how it used that term in the 2020 Title IX Final Rule and Preamble. In the Preamble, the Department defined “survivor” or “victim” as terms that attached after a “reliable process” finding the respondent responsible for the alleged sexual harassment. See, 85 Fed. Reg. 30026, 30031 (May 19, 2020). In other words, the Department would not consider a complainant to be a “survivor” until the determination regarding responsibility was made through its defined grievance process.
By contrast, the Fact Sheet incorporates “survivor” protections that apply even if the individual never files a formal complaint. For example, the Fact Sheet states that “Survivors are in the position of control to decide what happens after an incident of sexual harassment, including sexual assault, occurs,” and an institution “must respect a survivor’s decision to file, or not to file, a formal complaint and must offer supportive measures either way.” Unlike the Preamble, then, the Department’s current guidance indicates that an individual may be considered a “survivor” whether a grievance process commences or not.
Like in the Final Rule and Preamble, the Fact Sheet highlights some of the supportive measures available to a person reporting misconduct, including changes to class schedules and “dorm reassignments.” But the Fact Sheet does not fully communicate the requirement in the Final Rule and Preamble that any supportive measure offered has to consider the impact on all parties, and the measure cannot unduly burden the respondent or complainant.
The Fact Sheet also states that “A survivor never has to come face-to-face with the accused during a hearing.” This protection is somewhat different than the requirement in the Final Rule that the parties be able to see and hear one another, but the regulations seem to anticipate this protection by allowing for remote hearings. It is unclear if the protection to not have to be “face-to-face” with the respondent would change the physical set-up of a hearing room.
Along with addressing retaliation, the Fact Sheet further indicates that “Survivors are protected against bullying or harassment throughout the grievance process.” This language may be specifically geared to the K-12 context, but we would note that institutions of higher education typically do not regulate “bullying” in their codes of conduct. As such, institutions may reflect on whether their current anti-retaliation policies adequately cover the range of behaviors that can arise in a Title IX proceeding.
SCI will continue to monitor changes in Departmental guidance and update our members as new issues arise. We note that these website changes accompany the Biden Administration’s March 8, 2021 Executive Order directing a review of the Title IX regulation. You can read more about that EO here.