02 August 2021

OCR Issues Title IX Q&A

After the Department of Education’s Office for Civil Rights (OCR) held a virtual public hearing on Title IX, it published a questions-and-answers (Q&A) resource to provide clarification to schools under the current regulations.

The resource sheds some light on general obligations, the definition of sexual harassment, and the process of handling cases and responding to formal complaints.  The Q&A document was designed to provide clarity and highlight areas in which schools may have discretion in their procedures for handling reports of sexual harassment.  It also includes an appendix offering scenarios and examples to help schools implement Title IX procedures appropriately.

While the document explains how OCR interprets schools’ obligations under Title IX, it also mentions that the 2020 amendments “set out the minimum steps that a school must take in response to notice of alleged sexual harassment,” and that a school can take “additional actions so long as those actions do not conflict with Title IX or the 2020 amendments.”  For example, the OCR encourages school institutions to address sexual misconduct that does not meet the definition of sexual harassment under the 2020 amendments, via a school institution’s code of conduct.   Further, it encourages schools to focus not only on responding to reports of sexual harassment, but to aspire to prevent sexual harassment by expending efforts that serve their respective educational communities.

In March 2021, President Biden issued an Executive Order (EO) titled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” It calls on Education Secretary Dr. Miguel Cardona to conduct a review of the Trump administration’s regulations and “consider suspending, revising, or rescinding” any agency actions relating to the 2020 regulations if deemed inconsistent with the Biden administration’s policy set forth in the EO.

It is important to recognize and remember that the Q&A does not have the force of law.  It simply serves as a source of reference to help understand and appropriately apply the 2020 amendments, which continue to remain in effect while OCR continues its comprehensive review.

The Q&A can be accessed here.