On April 6, 2021, the U.S. Department of Education’s (the “Department”) Office for Civil Rights (“OCR”) provided a roadmap for carrying out President Biden’s recent Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.[1] In a letter to students, educators, and other stakeholders,[2] OCR explained that it will engage in a comprehensive review of the Department’s existing regulations, orders, guidance, policies, and other similar agency actions including, most notably, the Department’s Title IX regulations that took effect on August 14, 2020, titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” (the “2020 Amendments”). Vitally important for all education programs and activities that receive federal funding, the letter provides answers to some of the speculation surrounding how the Department under the Biden Administration will handle Title IX enforcement. Notably, OCR states that the 2020 Amendments will remain in effect at this time, signaling that the Amendments will not be repealed in anticipation of the possibility of replacement. Instead, OCR’s process contemplates a more permanent solution through a notice of proposed rulemaking following a public hearing.
Upcoming Public Hearing
OCR will commence its process by gathering feedback from the public through to-be-scheduled public hearings. Participants will be able to share insights on the issue of sexual harassment in school environments, including sexual violence and discrimination based on sexual orientation and gender identity, via oral comments and written submissions. More information regarding the public hearings, including dates, times, and instructions for those planning to participate, is expected to be published in the coming weeks on the News Room section of OCR’s website and in a forthcoming Federal Register notice.
Notice of Proposed Rulemaking
After gathering information through the public hearing and completing its review of the Department’s current Title IX regulations and other agency actions, OCR anticipates publishing in the Federal Register a notice of proposed rulemaking to amend the Department’s Title IX regulations. If that occurs, the public will have an additional opportunity to weigh in during a formal notice-and-comment period.
Forthcoming Q&A
OCR also previewed that it intends to issue a question-and-answer document in the coming months to provide additional clarity about how OCR interprets schools’ obligations under the 2020 Amendments. Among other things, the Q&A document will outline areas in which schools may exercise discretion in their procedures for responding to reports of sexual harassment.
Saul Ewing Arnstein & Lehr will continue to monitor these developments.
- Exec. Order 14021, 86 Fed. Reg. 13,803 (March 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf.
- U.S. Dept. of Educ., Office for Civil Rights, Letter to Students, Educators, and other Stakeholders re Exec. Order 14021, (Apr. 6, 2021), https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf.
