Late last week, with no apparent public discussion, the Department of Education (the “Department”) withdrew a number of Office for Civil Rights (“OCR”) guidance documents relating to Title IX in the wake of the new Title IX regulations governing institutions’ policies and procedures for adjudicating Title IX sexual harassment. In light of the Department’s previously articulated intention to move away from guidance documents, the Department’s move to withdraw existing guidance is not all that surprising. The Department had previously withdrawn guidance related to transgender students and sexual harassment released by the prior administration’s OCR, and has now rescinded – and institutions may no longer rely upon – several additional guidance documents, including:

• January 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties;
• April 2015 resources for Title IX Coordinators, including the Dear Colleague Letter, and the Title IX Resource Guide; and
• September 2017 Q&A on Campus Sexual Misconduct.

The rescinded guidance includes administrative requirements that are no longer in effect and reference prior grievance procedures that are inconsistent with the new regulations. For example, the now rescinded Title IX Resource Guide references the prior regulations throughout, and includes language suggesting institutions may or may not include grounds for appeals from Title IX outcome determinations – which is no longer the case. Likewise, the rescinded Sexual Harassment Guidance refers to the outdated “hostile environment” term and the Q&A on Campus Sexual Misconduct reflects the old rule which did not require a hearing for all higher education institutions’ proceedings. In light of the inconsistencies with the new Title IX regulations and preamble, the Department’s withdraw of the guidance in the above documents is immediately in effect.

Also effective late last week, the Department made a round of revisions to its Case Processing Manual (“CPM”). OCR’s CPM is the document that outlines the process used to evaluate administrative complaints under the civil rights laws OCR enforces. There are a few noteworthy changes from the prior version of the CPM:

• The revised CPM provides institutions entering into resolution agreements with OCR the opportunity to review resolution letters prior to their finality. Under the updated CPM, OCR will issue a draft resolution letter and a proposed resolution agreement to the institution, which will have five calendar days from the date of the issuance of the draft to “inform OCR of any factual errors contained therein.” OCR will consider any concerns raised, and correct any factual errors it deems appropriate prior to issuing the revised final resolution letter. This revision is a step in the right direction for institutions that previously were not able to see the factual findings before entering into resolution agreements – this change will increase transparency prior to agreements and allow institutions the opportunity to challenge any factual errors.
• Another significant change is the addition of the new Section 109 to the CPM. Under the revised CPM, Section 109 provides that “OCR interprets its statutes and regulations consistent with the requirements of the First Amendment, and all actions taken by OCR must comport with First Amendment principles” and OCR will not require institutions to “encroach upon the exercise of such [First Amendment] rights.” This new language highlights OCR’s recent focus on First Amendment rights and its stated commitment to interpret civil rights laws in a manner that prioritizes speech rights.
• Finally, the revised CPM now sets forth the applicable standard of review for appeals of OCR determinations. While the prior version of the CPM was silent as to the standard of review for appeals, the updated CPM provides that “OCR reviews appeals to determine whether there is a clear error of fact and/or an error in the legal conclusion that changes the outcome of the determination.”