On July 20, 2021, the Department of Education’s Office for Civil Rights (OCR) issued Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) and a related Appendix. It also published the transcript from the Department’s recent virtual public hearing on Title IX on June 7 through June 11, 2021.
At a stakeholder meeting held on July 21, Acting Assistant Secretary Suzanne Goldberg explained that this Q&A document is meant to clarify OCR’s interpretation of the 2020 Title IX Final Rule and to provide guidance about where recipients have discretion in implementing the rules. The Q&A is meant to supplement other guidance that OCR has issued since the Rule’s publication, but it does not create any new legal requirements.
Readers who are well-versed in the Title IX Final Rules and their Preamble (and have reviewed our 2020 Joint Guidance on the Federal Title IX Regulations) will find most of the discussion in the Q&A familiar. In practice, this Q&A will serve as a useful reference for common questions that arise in the Title IX grievance process, including the definition of sexual harassment, how an institution receives “actual notice” of sexual harassment, what an institution must do in response, and how to investigate and adjudicate a formal complaint. Practitioners may consider looking to this Q&A as a tool to navigate the 554-page Final Rule.
Perhaps most notably, the Q&A does not diverge from previous OCR guidance about the requirements for live cross-examination in a Title IX hearing. For example, Answer 51 reinforces that if a party or witness does not submit to cross-examination, their statements cannot be relied upon by the decision-maker in reaching the determination regarding responsibility. But, in Answers 52 and 53, the Q&A does address the distinction between statement and non-statement evidence (e.g. videos or photographs of the incident) and makes clear that statements alleged to constitute sexual harassment may be relied upon by the decision-maker even if the speaker does not submit to cross-examination.
The Q&A also does not attempt to reconcile the Final Rules with issues that have been litigated since the Final Rules’ implementation regarding the retroactivity of the regulation. Answer 13 simply restates OCR’s guidance that the Rules are not retroactive to misconduct that allegedly occurred prior to August 14, 2020, even if the formal complaint is filed after that implementation date.
One area which may raise confusion concerns the responsibility of the Title IX Coordinator to file a formal complaint where the complainant declines to do so, or is not currently participating or attempting to engage in an education program or activity. Answer 24 states that the Title IX Coordinator may file a formal complaint “even if the complainant is not associated with the school in any way.” In fact, depending on the case, “a school may be in violation of Title IX if the Title IX Coordinator does not do so.”
When would that happen? Answer 24 offers an example, drawn from the Preamble, where the school “has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority.” In that case, OCR may find a school to be deliberately indifferent where the Title IX Coordinator fails to sign a formal complaint even against the complainant’s wishes. OCR reasoned that 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.”
Along with this Q&A, OCR has appended model language that recipients may adapt when considering creating or revising their Title IX policies and procedures. On the July 21 stakeholder call, Acting Assistant Secretary Goldberg said that this example language was adapted from a variety of school settings in response to institutional requests. She said that no school must, should, or needs to adopt this language to be Title IX-compliant, and that adopting these policies does not show compliance with Title IX. Each OCR investigation is fact-specific concerning whether an institution is in compliance with the law.
The Student Conduct Institute is in the process of reviewing this example language and will let our members know if any changes to our Title IX Model Policy are forthcoming.