June 4, 2020
Note: This document focuses on a summary analysis of Section 106.6(g) of the 2020 Final Title IX Regulations,1 specifically on existing parental rights. For a full overview of the changes from the Proposed Regulations, see Title IX Text for Text Proposed to Final Comparison and Title IX Summary Proposed to Final Comparison, available at system.suny.edu/sci/tix2020
The Final Rule added a new section 106.6(g) clarifying that any existing legal rights held by parents and guardians to act on behalf of a complainant, respondent, party or other individual are not diminished or affected by the Final Rule, including the right to file a formal complaint. These existing legal rights are granted by “State law, court orders, child custody arrangements, or other sources granting legal rights to parents or guardians” or may be required under FERPA. See 85 Fed. Reg. 30,026, 30,453 (May 19, 2020).
The Department clarifies that when parents or guardians have such rights, the parent or guardian must be permitted to exercise the rights granted to the party under these final regulations, whether such rights involve requesting supportive measures or participating in a grievance process.
Similarly, the parent or guardian must be permitted to accompany the student to meetings, interviews, and hearings during a grievance process to exercise rights on behalf of the student, while the student’s advisor of choice may be a different person from the parent or guardian. See Id.
The Department further clarifies that in cases where FERPA may not accord the right of a party to review evidence, the Final Regulations do so and provide a parent the right to inspect and review such evidence as well. See Id.
These parental rights extend not only to sexual harassment proceedings under the Final Regulations, but to “any issue of sex discrimination under Title IX.” See Id. at 30,453-30,454.
1 The effective date for these regulations will be August 14, 2020 and will apply prospectively. The Department has stated it will provide technical assistance during the transition period and after the effective date.
The Joint Guidance on the 2020 Title IX Regulations is prepared as a service by in-house and firm attorneys, but does not represent legal advice. The Joint Guidance is compliance advice and no attorney/client relationship is formed with any contributor or their organization. Legal advice for specific situations may depend upon state law and federal and state case law and readers are advised to seek the advice of counsel. The Joint Guidance is available absolutely free pursuant to a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license (meaning that all educational institutions are free to use, customize, adapt, and re-share the content, with proper attribution, for non-commercial purposes, but the content may not be sold).