Posted on July 26, 2021
By: Lily Crespo Esq.
Tuesday, the U.S. Department of Education’s Office for Civil Rights (OCR) issued new, anticipated guidance concerning the Department’s current regulations related to sexual harassment. The guidance, titled Questions and Answers on the Title IX Regulations on Sexual Harassment, clarifies how OCR interprets schools’ existing obligations under the 2020 amendments. The Q&A addresses 67 questions covering a variety of topics ranging from general obligations under Title IX, sexual harassment, formal complaints, and participation in the grievance process to supportive measures, time frames, live hearings, informal resolution, and retaliation. The Q&A also includes an appendix containing example policy provisions addressing particular regulatory requirements.
While OCR is reviewing the 2020 amendments to the Title IX regulations and contemplating revisions, the Q&A confirms that until any new regulations go into effect, the 2020 amendments remain in place. The Q&A reflects OCR’s interpretation of those regulations and largely relies on language in the preamble to the 2020 amendments when answering the various questions posed. Remember that neither the Q&A nor the preamble have the force of law–but they can be helpful in interpreting the regulations, which do. While the Q&A does not include any bombshells, it can be used as a helpful reference point to understand and apply the 2020 Title IX regulations. We’ve highlighted some topics from the Q&A below to keep in mind as your institution addresses various Title IX issues:
- Sexual Harassment That Does Not Meet the Definition Under Title IX. OCR encourages institutions to address sexual misconduct that does not meet the definition of sexual harassment under the 2020 amendments. The Q&A confirms that other forms of sexual misconduct should be addressed through an institution’s code of conduct. OCR further encourages institutions to endeavor to prevent sexual harassment from occurring in the first place by undertaking prevention efforts that serve their educational communities.
- Sexual Assault. The Q&A confirms the applicable definitions of sexual assault, dating violence, domestic violence, and stalking that the 2020 amendments require schools to use, including the Clery Act definition of sexual assault: “a forcible or nonforcible offense under the uniform crime reporting system of the Federal Bureau of Investigation.” The Q&A explains that forcible sex offenses include “any sexual act, including rape, sodomy, sexual assault with an object, or fondling ‘directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent.’” Conduct fitting these definitions is considered a type of sexual harassment under the 2020 Title IX amendments.
- Sexual Harassment Occurring Prior to the 2020 Amendments. OCR confirms that the 2020 amendments are not retroactive. Therefore, the 2020 Title IX amendments would not apply to any complaints of sexual harassment that occurred before August 14, 2020. This remains true even if the institution learns of or responds to the conduct after the implementation date (August 14, 2020).
- Denial of Access to a School’s Education Program or Activity. The guidance states that a school must evaluate “whether a reasonable person in the complainant’s position would be effectively denied equal access to education compared to a similarly situated person who is not suffering the alleged sexual harassment” to determine whether a person has been effectively denied equal access to a school’s program or activity. OCR clarifies that a complainant need not suffer a loss of education before reporting sexual harassment and a denial of equal access does not require that total access has been denied. Additionally, OCR confirms that no concrete injury is required to prove effective denial. For example, a complainant does not need to have “dropped out of school, failed a class, had a panic attack, or otherwise reached a ‘breaking point’” or exhibit other specific trauma symptoms to effectively be denied equal access.
- Notice. The Q&A also emphasizes that OCR will not limit the manner in which an institution may receive notice of sexual harassment, and that responsible employees “may receive notice through an oral report of sexual harassment by a complainant or anyone else, a written report, through personal observation, through a newspaper article, through an anonymous report, or through other various means.” Accordingly, OCR confirms that it would view indirect avenues of information, such as a newspaper article, to constitute actual knowledge under the 2020 amendments.
- Enrollment Status of Complainant. The Q&A states that an institution is required to accept a formal complaint of sexual harassment from a complainant that is not currently enrolled in or attending the school, as long as the complainant is attempting to participate in the school’s education program or activity at the time they file the formal complaint. Examples of a complainant attempting to participate in a school’s education program include when a complainant: (i) has withdrawn from school due to alleged sexual harassment and expresses a desire to re-enroll; (ii) has graduated but intends to apply to a new program or participate in alumni programs and activities; (iii) is on a leave of absence and is still enrolled or intends to re-apply after a leave of absence; or (iv) has applied for admission.
- Signing a Formal Complaint as a Title IX Coordinator. The Q&A states that OCR may find a school to be deliberately indifferent if it has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority if the school’s Title IX Coordinator does not sign a formal complaint regardless of the complainant’s relationship with the school or interest in participating in the Title IX grievance process. This guidance appears to be an expansion of prior guidance in that Title IX Coordinators may sign a formal complaint even if the complainant is not associated with the institution in any way, and that in some instances, a school could be in violation of Title IX if the Title IX Coordinator fails to do so. Whether the Title IX Coordinator should sign a complaint, especially if the complainant is not participating or attempting to participate in the education program or activity is a nuanced, complex decision and legal counsel can help work through these matters.
- Enrollment Status of Respondent. The Q&A further states that institutions are required to take action even if a respondent has left the school prior to filing of the formal complaint. If the respondent is no longer at the institution, the Title IX Coordinator is still required to inform the complainant about the availability of supportive measures. Additionally, while an institution may dismiss a formal complaint if, during the grievance process, the respondent is no longer enrolled or employed, OCR confirms that institutions have the discretion to assess the facts of a case before deciding whether to dismiss the complaint. OCR states that schools may consider “whether a respondent poses an ongoing risk to the community,” or “whether a determination regarding responsibility provides a benefit to the complainant even where the school lacks control over the respondent and would be unable to issue disciplinary sanctions.”
- Written Cross-Examination Questions. The Q&A also confirms that elementary and secondary schools must provide parties the opportunity to submit written, relevant questions that a party wants asked of any party or witness. In doing so, it notes that the 2020 amendments also permit a parent or legally authorized guardian to act on behalf of a party, and that any legal rights a parent has to act on the party’s behalf apply throughout the grievance process, implying that this would extend to the exchange of written cross-examination questions and answers as well.
Along with the Q&A, OCR also published a transcript of the public hearing held in June 2021 on Title IX, which includes comments from over 280 stakeholders on issues of sexual harassment and sexual violence, fair and equitable resolution of reports of sexual misconduct, and addressing discrimination based on sexual orientation and gender identity.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.