by Veronica Potter
On July 20, 2021, the Department of Education’s Office of Civil Rights (OCR) published it’s Questions and Answers on the Title IX Regulations on Sexual Harassment (“Q&A”). This resource contains a series of questions and answers regarding the regulations on Title IX that went into effect on August 14, 2020 (“2020 Regulations”), as well as excerpts of example policies from elementary, secondary, and postsecondary institutions.
In a blog post discussing the release of the Q&A, OCR stated that it is acting on the priorities established in President Biden’s two executive orders on Title IX. OCR has also undertaken a comprehensive review of the existing Title IX regulations and has held public hearings on Title IX enforcement. In addition to releasing the Q&A, OCR also released the transcript from recently held public hearings on Title IX.
The Q&A does not affect the status of the 2020 Regulations – those regulations remain in effect today, and will continue to remain in effect while OCR continues its comprehensive review of Title IX until new regulations take effect. Because the 2020 Regulations went through the formal rulemaking process (including the notice and comment period), they cannot be revoked or changed by OCR without going through the rulemaking process again. The Q&A did not go through the rulemaking process – it is subregulatory guidance that explains how OCR will interpret and enforce the 2020 Regulations.
According to OCR, the purpose of the Q&A is to “highlight areas in which schools may have discretion in their procedures for responding to reports of sexual harassment.” The Q&A also sets forth OCR’s interpretation of institution’s responsibilities under the 2020 Regulations and may offer some insight into how OCR will enforce the regulations
The Q&A relies heavily on the preamble to the 2020 Regulations in its interpretation of the regulations, though the concise question and answer format is easier to navigate and interpret than the hundreds of pages of the preamble. It should be noted that both the Q&A and the preamble are guidance and do not have the force and effect of law, unlike the 2020 Regulations.
The Q&A both highlights areas where institutions have discretion and clarifies points of confusion about the requirements of the 2020 Regulations. Below are a few provisions of note from the Q&A:
Areas of Discretion
- Scope of the 2020 Regulations – The 2020 Regulations limited the applicability of the grievance process established by those regulations to reports of sexual harassment that met a very specific definition of sexual harassment and that happened within an institution’s education program or activity to a person in the United States. There was immediate concern about how institutions should respond to off-campus events, harassment that does not meet the definition in the 2020 Regulations, or conduct that occurs in study abroad programs. The Q&A emphasizes that institutions can, and in many cases should, address conduct that falls outside the scope of the 2020 Regulations through other campus processes, like the student code of conduct.
- Time frame of the grievance process – The 2020 Regulations require the grievance process to be “reasonably prompt,” but did not set a firm time frame or deadline for the completion of the process. The now-revoked 2011 Dear Colleague Letter had previously suggested a 60-day time frame. The Q&A states that institutions have the discretion to establish a 60-day time frame for the grievance process, though a specific time frame is not required by the 2020 Regulations. While the determination of what is “reasonably prompt” will be fact specific, this provision of the Q&A suggests that OCR may have a more strict interpretation than the previous administration. Any delays to the process for good cause should be well documented, and institutions should take advantage of technology to allow investigations and hearings to proceed even during breaks to avoid unnecessary or lengthy delays.
- Trauma informed approach – The Q&A states that institutions may use a trauma informed approach with their grievance process, but the approach must be consistent with the 2020 Regulation’s requirements. Specifically, the 2020 Regulations require that the officials involved in the Title IX grievance process not have a bias or conflict of interest for or against either party and that training materials “promote impartial investigations and adjudications” and do not rely on sex stereotypes.
- Rules for hearings – Institutions can create their own rules of procedure and rules of decorum for hearings, as long as the rules are applied equally to both parties. These rules can address whether parties can make opening or closing statements, place reasonable time limits on a hearing, limit duplicative questions, and prohibit advisors from questioning parties and witnesses in an abusive, intimidating, or disrespectful manner. Further, while advisors must be allowed to ask cross-examination questions the other party and witnesses during the hearing, the advisors role could be limited to asking questions drafted by their party. Institutions may also put procedures in place during the hearing to help protect the well-being of the participants, like creating separate break-out rooms for the parties and requiring breaks. While the 2020 Regulations do not require K-12 schools to conduct hearings as part of their Title IX grievance process, the Q&A does remind schools that they must provide a process that allows parties to submit written, relevant questions for the other party or witnesses.
Points of Clarification
- Exclusion of “hearsay” – The 2020 Regulations require that prior statements from a party or witness who does not submit to cross-examination cannot be relied upon in making a determination of responsibility. The Q&A confirms this requirement, but notes that this exclusion does not include prior statements of the respondent where the statement itself is the alleged harassment, even if the respondent does not submit to cross-examination. This exclusion also does not include video or photographic evidence of an underlying incident. However, later statements between the parties, such as an apology for the alleged conduct or an admission to committing the alleged conduct, could not be considered if the party making the statement does not submit to cross-examination.
- Regulations are not retroactive – The Q&A states that the 2020 Regulations are not retroactive. Institutions must follow the Title IX statute and regulations that were in place at the time the alleged incident occurred. Therefore, if the conduct occurred before August 14, 2020, the 2020 Regulations do not apply, even if the conduct was reported after August 14, 2020.
- Formal complaint – While the 2020 Regulations require a complainant to be participating in or attempting to participate in the institution’s education program or activity in order to file a formal complaint, the Q&A clarifies that institutions should look at complainant’s status at the time the complaint is filed. If the complainant later leaves the program, or is no longer attempting to participate in the program, that does not affect the formal complaint that has been filed. The Q&A notes that a Title IX coordinator can also always file a formal complaint even if the complainant is not associated with the institution.
Our Higher Education Team and K-12 Education Team will continue to keep you informed about changes in the Title IX landscape. If you have questions about how these regulations might impact your institution, please contact your Tueth Keeney education attorney.
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The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law and higher education groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri, and has one of the largest school law practices in Central and Southern Illinois. The Firm also represents numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s education and higher education groups provide a full range of services to school districts, colleges, and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.
Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.