Schools should be aware of several notable developments in the application and enforcement of Title IX. These developments include a federal decision on the most recent 2020 amendments to the Title IX regulations, a letter issued by the U.S. Department of Education’s Office for Civil Rights (OCR) regarding its enforcement of a particular provision in the Title IX regulations, and OCR’s release of a Q&A-style guidance document on the Title IX regulations.
Most recently, a federal district court in Massachusetts ruled that a provision of the 2020 amendments to the Title IX regulations, which prohibited decision-makers from relying on statements not subject to cross-examination at a live hearing, is arbitrary and capricious under the Administrative Procedure Act. OCR subsequently issued an Aug. 24, 2021 letter indicating that it will no longer enforce this particular regulatory provision but will enforce all other provisions of the 2020 amendments to the Title IX regulations. The Foundation for Individual Rights in Education, Independent Women’s Law Center and Speech First Inc. filed a petition for a writ of certiorari to challenge the federal district court’s denial of its motion to intervene in this lawsuit. In the meantime, OCR’s Questions and Answers on the Title IX Regulations on Sexual Harassment, which was issued before the federal district court’s opinion, reveals its priorities.
These updates not only represent changes to the enforcement of Title IX, but they signal a priority shift within OCR.
Q&A on Title IX Regulations
The amendments to the Title IX regulations, which became effective Aug. 14, 2020, for the first time define sexual harassment as a form of sex discrimination in a manner that has the force and effect of law. Per President Biden’s March 8, 2021, Executive Order, these Title IX regulations currently are undergoing a comprehensive review. As OCR made clear in its Q&A, the amendments to the Title IX regulations remain the law until OCR undergoes another notice-and-comment rulemaking to revise these regulations. On July 20, 2021, OCR issued a comprehensive Q&A to provide guidance on a wide variety of topics, including the definition of sexual harassment and how schools should process formal complaints of sexual harassment.
OCR acknowledged that the Q&A “does not have the force and effect of law and is not meant to bind the public or regulated entities in any way.” Instead, the purpose of the Q&A is to “provide clarity to the public regarding OCR’s interpretation of existing legally binding statutory and regulatory requirements.” As a whole, the Q&A offers a glimpse into OCR’s priorities and interpretation.
There are two larger themes evident throughout the Q&A. First, the Q&A makes it clear that OCR will lean toward a much broader definition of sexual harassment than the current Title IX regulations require. Second, the Q&A demonstrates OCR’s willingness to recognize a school’s responsibility to address sexual harassment that occurred outside the education program and activity of a school.
While there are 67 questions within OCR’s publication spanning 17 larger topics, below are some key takeaways:
- Definition of Sexual Harassment. OCR expressly acknowledges that the definition of “sexual harassment” remains the definition in the Title IX regulations, 34 CFR 106.30(a), but effectively encourages schools to address a broader scope of conduct through other conduct policies. (See Questions 5 and 7.) OCR also encourages schools to include in training materials for students and employees some specific examples of how a student may be effectively denied equal access to education programs and activities. (See Question 8.)
- Responsibility to Address Not Dependent on Where Sexual Harassment Occurs. OCR emphasizes that supportive measures may be provided to a complainant where the alleged sexual harassment occurred outside the school’s education program or activity. (See Question 9.)
- Consideration of When Harassment Occurred. OCR emphasizes that the Title IX regulations, including procedural protections for both parties during a grievance process, apply only to conduct on or after Aug. 14, 2020, the effective date of the amendments to the Title IX regulations. (See Question 13.) Schools still should be mindful of the October 2020 decision in Doe v. Rensselaer Polytechnic Institute, 1:20-cv-1185 (N.D.N.Y. October 16, 2020), where the court enjoined Rensselaer Polytechnic Institute from applying its 2018 Sexual Misconduct Policy to a complaint concerning an incident that occurred prior to Aug. 14, 2020. A school may wish to examine whether its policies and procedures prior to Aug. 14, 2020, provide sufficient due process protections, with respect to public schools, or sufficient procedural fairness, with respect to private schools, for both parties. See Doe v. Univ. of the Scis., 961 F.3 203 (3d Cir. 2020); Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56 (2019); Doe v. Baum, 903 F.3d 575 (6th Cir. 2018).
- Duty to Act. OCR highlights that, regardless of a complainant’s relationship with the school, a Title IX coordinator may still have a duty to act. (See Question 24-25.)
- Time Frames for Investigations. OCR highlights that nothing in the Title IX regulations prohibit a school from adopting a 60-day time frame for resolving sexual harassment complaints. (See Question 37.) This is a clear callback to OCR’s previous Q&A (see Question F-8), issued in April 2014, which references a “60-day calendar day timeframe” as the length of a typical investigation process.
- Live Hearings and Cross-Examination Procedures. OCR highlights a potential limitation to the role of adviser during cross-examination, but indicates that schools should still permit cross-examination conducted by an adviser so as not to limit due process rights. (See Question 43.) Note that even the April 4, 2011 Dear Colleague letter allowed cross-examination as long as the parties did not directly cross-examine one another, and the amendments to the Title IX regulations do not allow the parties to directly cross-examine one another.
- Religious Exemption. OCR also clarifies that educational institutions controlled by a religious organization do not have to request an assurance of the religious exemption from OCR. (See Question 66.)
Court Decisions and Trends
In addition to OCR’s Q&A, institutions should consider the ruling in Victim Rights Law Center v. Cardona, No. 20-11104-WGY (D. Mass July 28, 2021) in their Title IX policies. In this decision, a federal district court in Massachusetts vacated one of the provisions of the Title IX regulations, which prohibited decision-makers in a Title IX grievance process from considering statements of individuals who were not subject to cross-examination.
The court determined that the following provision is arbitrary and capricious under the Administrative Procedure Act:
If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility. 34 C.F.R. § 106.45(b)(6)(i).
OCR announced in its Aug. 24, 2021 letter that it will no longer enforce this provision and that “a decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.” OCR further stated that the public should not rely upon statements in other OCR documents such as the Q&A about this vacated provision in 34 C.F.R. § 106.45(b)(6)(i).
A postsecondary institution may choose to amend its Title IX policy and procedures to allow decision-makers to consider statements by parties and witnesses, such as emails and text messages, even if the declarant was not subject to cross-examination. Such an amendment would allow a decision-maker to consider medical records, if the parties choose to provide them, and police reports without requiring the individuals who made the statements in these records or reports to undergo cross-examination. If a school amends its Title IX policy and procedures, the school may wish to do so prospectively. If a school amends its Title IX policy and procedures in a manner that affects cases pending under its current Title IX policy and procedures that comply with the vacated provision of
34 C.F.R. § 106.45(b)(6)(i), then the school may expose itself to liability.
The federal district court did not rule that the vacated provision of 34 C.F.R. § 106.45(b)(6)(i) is unconstitutional or unlawful to enforce; the court simply ruled that the U.S. Department of Education did not fulfill the requirements of the Administrative Procedure Act in promulgating it. Accordingly, a school that changes its policy and procedures may still be subject to due process or procedural fairness challenges, if a party will not have the opportunity to cross-examine a declarant on a key statement.
Schools should be aware that three organizations filed a petition for a writ of certiorari to challenge the federal district court’s denial of its motion to intervene in this lawsuit. If the Supreme Court grants this petition and if these organizations prevail, then there is a possibility that the federal district court may reconsider its ruling.
The legal landscape for Title IX interpretation and compliance is expected to change drastically as OCR completes its review of the Title IX regulations. For additional guidance and assistance with understanding the effects of any such changes on institutions’ policies and navigating these changes, please contact the authors of this article.