The U.S. Department of Education’s Office for Civil Rights (OCR) has released its Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) and Appendix with sample policies (Q & A), which represents the most extensive discussion to date by OCR under Biden-Harris Administration of the 2020 Title IX amendments enacted by the previous administration.
The Q & A includes new clarifications and information previously provided by OCR after implementation of the 2020 amendments.
According to OCR, the Q & A aims to assist schools, students, and others by highlighting areas in which schools may have discretion in their procedures for responding to reports of sexual harassment. The Q & A emphasizes that the 2020 amendments “set out the minimum steps that a school must take in response to notice of alleged sexual harassment,” and that “[a] school may take additional actions so long as those actions do not conflict with Title IX or the 2020 amendments.”
For example, the Q & A encourages or suggests schools:
The Q & A also explains that, while a respondent may not be presumed responsible, a school “should never assume a complainant … is lying” or that alleged conduct did not occur.
The Q & A explicitly states that the preamble to the 2020 amendments clarifies OCR’s interpretation of Title IX and the regulations, but “the preamble itself does not have the force and effect of law.” The Q & A stresses, “As always, OCR’s enforcement of Title IX stems from Title IX and its implementing regulations, not this or other guidance documents.”
OCR also notes that the Q & A is guided by President Joe Biden’s “Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” and “Executive Order on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation.” OCR discusses the Q & A in its blog post.
This Q&A comes after OCR conducted a virtual public hearing on Title IX in June 2021. Over five days, more than 280 students, educators, and other members of the public spoke to OCR on a variety of issues related to Title IX. The 2020 amendments remain in effect while OCR’s comprehensive review of Title IX and its implementing regulations is ongoing.
More information regarding Jackson Lewis’ Title IX Video Training Series can be found here.
(Summer law clerk Felicia Kalkman contributed to this article.)