On July 20, 2021, the Department of Education (through the Office of Civil Rights “OCR”), unveiled new guidance to help schools understand their obligations under the Betsy DeVos-era Title IX rule. The rule, which went into effect on August 14, 2020, is currently undergoing a comprehensive review based on the Executive Order issued by President Biden on April 6, 2021.
The 67-page Q&A is divided into 17 sections and provides guidance on a variety of topics covered by the 2020 Title IX amendments, focusing on language within the preamble. The guidance also includes an appendix with sample language schools can utilize (but are not required to) in creating a Title IX policy.
OCR makes it clear that the 2020 Title IX amendments set out the minimum steps a school must take in response to notice of alleged sexual harassment. Schools may take additional actions so long as there is no conflict with Title IX. Some key points of the guidance which apply to postsecondary institutions include:
Definition of Sexual Harassment and When/How it Occurs
- Schools can respond to alleged sexual misconduct that does not meet the definition of sexual harassment in the 2020 amendments.
- OCR encourages schools to develop and enforce their codes of conduct as an additional tool for ensuing safe and supportive educational environments for all students.
- Schools must provide training to Title IX personnel to accurately identify situations that require a response. OCR encourages schools to include examples of “programs and activities” in their policies, staff training and student-orientated communication for improved understanding.
- Schools must follow the requirements of the Title IX statute and the regulations in place at the time of the alleged incident. The 2020 amendments do not apply to alleged sexual harassment occurring before August 14, 2020.
Notice of Sexual Harassment
- OCR cannot provide examples of individuals at the postsecondary level that have authority to institute corrective action (which triggers actual knowledge, and the school must respond) because this determination must be made at the school level. The school is in the best position to determine who can institute corrective action.
- Schools are put on notice (actual knowledge) of alleged sexual harassment by any person (not limited to a complainant) if it is a school official with authority to institute corrective action. This would include information from a newspaper article, oral report, written report, personal observation or anonymous report.
- The Department will not hold a postsecondary school responsible for responding to sexual harassment unless the employee actually gave notice to the school’s Title IX coordinator or other official with an authority to institute corrective action.
Response to Sexual Harassment
- There are no remedies schools are required to impose when a respondent is found responsible of sexual harassment. Schools are free to make disciplinary and remedial decisions that it “believes are in the best interest of [its] educational environment.”
- If a respondent is found responsible (at the conclusion of the grievance process), remedies can be disciplinary, punitive, and burdensome to the respondent if the remedy restores or preserves the complainant’s equal access to the education program or activity.
- Generally, a formal complaint must be signed. An email from a student to a Title IX Coordinator that ends with the student signing their name would suffice.
- A Title IX Coordinator may file a formal complaint even if the complainant is not associated with the school in any way.
- A school must respond to a formal complaint even if the respondent left the school prior to the filing and has no plans to return.
- The school must use technology when needed. It cannot delay investigations or hearings solely because in-person interviews are not feasible.
- The school has discretion and flexibility to determine which supportive measures are appropriate.
- A school must provide appropriate supportive measures during the covid-19 pandemic.
- Supportive measures must be provided even if the complainant does not participate in the grievance process.
Live Hearings and Cross-Examination
- Each party’s advisor must be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.
- The parties are in the best position to decide which individuals should serve as their advisors. Advisors can be friends, family members, an attorney, or other individual chosen or provided by the school if the party does not choose one.
- Schools can adopt rules of decorum best suited for its education environment.
- There must be a pause after each cross-examination question for the decision-maker to determine if the question is relevant.
- Answers to cross-examination questions do not need to be “linear or sequential” and a party does not have to “recall details with certain levels of specificity.”
- Police reports, medical reports and other documents and records may not be relied on to the extent they contain the statements of a party or witness who has not submitted to cross-examination.
- The decision-maker may consider a text message, email or audio or video recording created and sent by a respondent as a form of alleged sexual harassment even if the respondent does not submit to cross-examination.
- If a party or witness submits to cross-examination but does not answer a question posed by the decision-maker, the decision-maker may still rely on all of that person’s statement.
Standard of Proof, Retaliation and Amnesty
- The same standard of proof (preponderance of the evidence or clear and convincing) must be applied for all formal complaints. Schools cannot use a different standard of proof for a complaint involving students and employees.
- Charges against an individual for code of conduct violations that do not involved sex discrimination or sexual harassment but arise out of the same facts or circumstances as a complaint of sexual harassment are prohibited if the charge would be retaliatory. However, if the school has a zero-tolerance policy which imposes the same punishment for such conduct regardless of the circumstances, imposing punishment would not be for the purpose of interfering with any right or privilege secured by Title IX and would not be considered retaliatory.
Forms of Sex Discrimination Other than Sexual Harassment
- The Title IX grievance process does not apply to complaints alleging discrimination based on pregnancy, different treatment based on sex, or other forms of sex discrimination. However, schools must still respond promptly and equitably to such complaints. OCR recommends that procedures should be written, easily understood and widely disseminated
The Department of Education issued on June 16, 2021, a Notice of Interpretation concluding that Title IX prohibits discrimination on the basis of sexual orientation and gender identity. Accordingly, the Department will now “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.”
In the Notice, the Department Continue reading “Department of Education Interprets Title IX to Protect LGBTQ+ Students”
The Department of Justice’s Civil Rights Division released a March 26, 2021 memorandum explaining the Division’s position that Title IX prohibits discrimination on the basis of transgender and sexual orientation status. In so concluding, the Division seeks to expand to Title IX the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., which held that Title VII’s definition of “sex” prohibited discrimination on the basis of sexual orientation and gender identity in the employment context.
The Division characterizes its advice as a supposed “starting point” for federal agencies. But it is more than that—the DOJ “is charged with coordination of the implementation and enforcement of Title IX by Executive agencies.” As such, the Division’s guidance will be highly instructive to federal agencies—most (if not all) are likely to follow suit—as well as the courts. Continue reading “Civil Rights Division of DOJ Explains Title IX Protects Gender Identity and Sexual Orientation Status, Bringing High-Stakes Showdown with Contrary State Laws One Step Closer”
On April 6, the Department of Education’s Office for Civil Rights (OCR) issued a new letter to students, educators, and stakeholders indicating the process that the Biden Administration will be undertaking on the issues surrounding the Title IX regulations. While light on details, the letter does provide a roadmap for OCR’s next steps and what colleges and universities can expect in the Title IX regulatory arena in the near future. Continue reading “Another Hint? Interpreting How the Biden Administration Will Approach Title IX Regulations”
Mississippi Governor Tate Reeves signed a bill today banning transgender athletes from competing on girls or women’s sports teams. Governor Reeves cited President Biden’s January 20, 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (covered here) as a primary reason for the law being necessary in Mississippi.
The law requires interscholastic and intramural sports to designate participation eligibility based on student biological status. Biologically male individuals are then banned from participating in those sports designated as being for “females, women, or girls.” The law applies to public K-12 schools, schools that are members of Mississippi High School Activities Association, public institutions of higher education, and higher education institutions belonging to NCAA, NAIA or NJCCA.
The law also provides a private cause of action. As such, a student “deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a violation” may bring a legal claim against the school. The law does not specify the types of relief available for such an action.
The law is set to go into effect on July 1, 2021. We expect the ACLU or similar group to challenge the law in federal court and try to enjoin the law from going into effect. Idaho passed a similar law last year, which is currently blocked from going into effect by federal court order.
On March 8, 2021, the Biden Administration published an Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” In short, the EO requires the U.S. Department of Education to reassess how it directs college campuses to investigate sexual violence – specifically, the 2020 Title IX Rule, 85 FR 30026 – as well as other regulations related to Title IX. Continue reading “President Biden Issues Executive Order Directing U.S. Department of Education to Reassess Title IX Rules”
As anticipated by our prior post, President Biden issued an executive order on his first day in office addressing gender identity and sexual orientation discrimination. In doing so, President Biden is taking aim at dismantling the recently published Department of Education’s internal memorandum, which concluded Title IX’s protections against discrimination on the basis of “sex” do not generally extend to sexual orientation or gender identity.
In the order, Continue reading “Biden Issues Executive Order Regarding Gender Identity and Sexual Orientation Discrimination”
On January 8, 2021, the Department of Education (“Department”) publicly released a 13-page internal memorandum from the Department’s Office of the General Counsel to the Department’s Office for Civil Rights that sets forth an analysis of Title IX as it relates to sexual orientation and transgender status. Specifically, the memo addresses the impact of the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) on Title IX. Bostock held that the definition of “sex” in Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity, including transgender status.
The memo’s analysis focuses on 5 questions:
- Does the Bostock decision construe Title IX?
- Does Bostock affect the meaning of “sex” as that term is used in Title IX?
- How should OCR view allegations that a recipient targets individuals for discriminatory treatment on the basis of a person’s transgender status or homosexuality?
- After Bostock, how should OCR view allegations of employment discrimination or sexual harassment based on an individual’s transgender status or homosexuality?
- How does the Department interpret Title IX and its implementing regulations in light of Bostock with respect to athletics, intimate facilities, religious exemptions, and other sex-segregated programs or activities addressed under Title IX and its regulations?
The memo concludes Continue reading “In One of Its Final Actions, Department of Education Releases Internal Memorandum Analyzing Title IX as it Relates to Sexual Orientation and Gender Identity”
The new Title IX Rule is now in effect as of today (Aug. 14, 2020). As such, all K-12 and postsecondary academic institutions that receive Title IV funding are required to have Title IX policies and procedures in place and to be implementing them going forward. As our readers will remember from our prior in-depth Client Alert, the new Rule governs employees and students, can include incidents on and off campus, requires institutions to adopt a formal process for investigating and resolving complaints (including a live hearing with cross-examination), and an appeals process.
Concurrent with the new Title IX Rule going into effect today, the Department of Education launched a Title IX website. The website is a repository Continue reading “As New Title IX Rule Goes into Effect, Department Launches New Title IX Website”
On May 19, 2020, the U.S. Department of Education issued its final rule on Title IX of the Education Amendments of 1972 regulations. These are the first comprehensive regulations issued under Title IX since 1975. The final rule, which applies to school districts, colleges and universities, including all institutions of higher education receiving Title IV funding, contains a number of significant changes, such as: a definition for sexual harassment, publication of Title IX materials, triggers for an institution’s legal obligation to respond and investigate, and a requirement that institutions conduct courtroomlike hearings.
To read the full text of this Duane Morris Alert, please visit the firm website.