As previously noted, the U.S. Department of Education issued its Final Rule on Title IX on May 15, 2020 with an effective date of August 14, 2020. Many K-12 and post-secondary institutions wondered whether the Final Rule would be applied retroactively.
On August 5, 2020, the U.S. Department of Education Office of Civil Rights (OCR) confirmed that while the Final Rule is effective as of August 14, 2020, it would not be applied retroactively.
Specifically, with this new guidance, OCR has confirmed the following:
- The Final Rule does not apply to a school’s responses to sexual harassment that allegedly occurred prior to August 14, 2020, as OCR will only enforce the Final Rule as to sexual harassment that allegedly occurred on or after August 14, 2020;
- For any alleged sexual harassment that occurred prior to August 14, 2020, OCR will judge a school’s Title IX compliance against the Title IX statute and regulations in place at the time that the alleged sexual harassment occurred.
Schools have options. With this additional confirmation from OCR, schools will have the option of continuing to apply their pre-Final Rule procedures and definitions to any conduct alleged to have occurred before August 14, 2020, OR applying their new, Final Rule-compliant policies and procedures to pre-August 14, 2020 conduct. However, schools should proceed with caution and discuss any potential decision with experienced legal counsel to ensure compliance with applicable state and federal rules.
Keep the old policies and procedures handy. Many complainants take months, if not years, to report sexual harassment/misconduct allegations, especially as there is no strict regulatory time limitation for parties to bring a Title IX complaint. Accordingly, going forward, schools should continue to anticipate receiving complaints that could be evaluated under old policies and procedures. As schools prepare for implementation of their new, Final Rule-compliant policies, they should also make sure that the old, soon-to-be retired policies are accessible for the foreseeable future.
Clearly communicate which policies and procedures apply to a given complaint. For any sexual harassment alleged to have occurred prior to August 14, 2020, schools should very clearly communicate with parties as to which policies and procedures will apply to any investigation/adjudication of the allegations.