On April 6, the Department of Education Office for Civil Rights (OCR) sent a letter to stakeholders indicating how it intends to provide guidance on the implementation of Title IX of the Education Amendments of 1972 (Title IX). This letter contains no surprises. OCR promises to obtain input through public hearings (the times and dates of which will be announced in the “coming weeks”), and provide interim guidance through a question and answer document (in the “coming months”) before engaging in notice and comment rulemaking. In the meantime, the Title IX regulations issued in May 2020 remain in effect.
Background on Title IX Policies
President Biden campaigned promising to return to and build on the Title IX policies established during the Obama administration. These policies differed substantially from what was enacted during the Trump administration. On March 11, President Biden issued an Executive Order, Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. This Executive Order announced a policy:
that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.
The Executive Order called on the Secretary of Education to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions that are or may be inconsistent with the above policy and to report the results to the Office of Management and Budget within 100 days of the Executive Order, that is, by June 20.
April 6 Letter Regarding Title IX Implementation
The April 6 letter describes some of the steps that OCR is taking to conduct the review required by the March 11 Executive Order. It states that among the regulations that will be reviewed are those issued in May 2020 implementing Title IX and goes on to describe the process OCR plans to follow in obtaining input and providing guidance on those regulations.
First, OCR will hold a public hearing at which stakeholders may provide input in writing and through oral comments. Information about the dates and times for the hearing will be provided “in the coming weeks” through a Federal Register notice and in the Department of Education newsroom.
Next, in the “coming months,” OCR will provide interim guidance through a question-and-answer type of document. The purpose of this document will be to clarify the responsibilities of educational institutions under the existing regulations and to describe where schools, colleges and universities “may have discretion in their procedures for responding to complaints of sexual harassment.”
Finally, OCR anticipates that it will engage in notice and comment rulemaking to amend the Title IX regulations. This will entail publication in the Federal Register of proposed regulations and an opportunity for the public to provide comments. The letter provides no timetable for this process.
What Does This Mean for Education Institutions?
Until OCR completes the process to amend the Title IX regulations, the current regulations remain in place and educational institutions that receive federal funds should continue to comply with their requirements.
University counsel should ensure that campus partners are aware of the upcoming public hearing opportunity. Interest groups can be expected to participate in these hearings through both written and oral submissions and some interested student groups on campuses will be likely participants. Given the ongoing pandemic and the greater prevalence of virtual meetings, we should expect that there will be some ability for participants to participate in one or more of these meetings remotely.
OCR’s prediction that a question and answer document should be ready “in the coming months” may provide institutions with guidance they can use to revise their Title IX procedures should they wish to over the summer to reflect the “discretion” promised by the Department. Whenever this guidance document is issued, university counsel will need to be prepared to review and provide guidance to relevant stakeholders concerning their policies and procedures. Given the Biden administration’s focus on addressing discrimination against the LGBTQ community, this document may provide some guidance on those issues. If the past is any guide, also be prepared for the question and answer document to raise as many questions as it attempts to answer.
As for the anticipated notice and comment rulemaking, one can only predict with generalities as to the substance and the timing of the future action. In addition to addressing LGBTQ issues, one might expect the Department to consider, among other topics, expanding the definition of sexual harassment that is prohibited by Title IX both as to conduct and as to geographic reach, providing more flexibility concerning live hearings and cross-examination of witnesses at the post-secondary level, and expanding the definition of when an institution has knowledge of a complaint of sexual harassment. As for timing, it is difficult to imagine that the Department will be able to complete the process in time for implementation for the 2022-2023 academic year unless its changes are extremely minor.
We will be watching these developments closely.