As discussed in a previous Cullen and Dykman client alert, on March 8, 2021, President
Biden issued the Executive Order on Guaranteeing an Educational
Environment Free from Discrimination on the Basis of Sex, Including
Sexual Orientation or Gender Identity (the “Executive
Order”). Among other things, the Executive Order requires the
Department of Education (the “DOE”) to periodically
review all existing regulations and actions “for consistency
with governing law, including Title IX,” and the Executive
Order. Moreover, specific instructions were issued requiring a
review of the Title IX regulations implemented during the Trump
Administration, “Nondiscrimination on the Basis of Sex in Education
Programs or Activities Receiving Federal Financial
Assistance,” 85 Fed. Reg. 30026 (May 19, 2020) (the
“Amendments”).
As a result, the DOE’s Office for Civil Rights
(“OCR”) is in the process of conducting a thorough review
of the Amendments. OCR sent out a public letter to students, educators, and
other stakeholders where it sketched its plans for possible
revisions to Title IX in light of the new Executive Order and
stated its plan to solicit public opinion (the “Letter”).
In the Letter, the Assistant Secretary for Civil Rights, Suzanne B.
Goldberg, highlighted the importance of taking steps to strengthen
the DOE’s “commitment made by Congress to our nation’s
students . . . [by prohibiting] sex discrimination in Federally
funded education programs and activities.” The Letter also
acknowledged that students may experience “multiple forms of
discrimination at once, including based on race, disability, and
national origin” as well as that “LGBTQ+ students are
subject to sexual harassment, including sexual violence, at
significant rates.”
As a result, the comprehensive review by OCR will aim to
“ensure that schools are providing students with a
nondiscriminatory educational environment” and that students
“have their legal rights fully met.” OCR plans to utilize
the public’s feedback to maximize its pool of resources, in
addition to 124,000 written comments already received in connection
with the Amendments’ rulemaking process.
During the week of June 7th, OCR hosted a series of
virtual hearings to gather information and opinion from the public
regarding the enforcement of Title IX of the Education Amendments
of 1972. Members of the general public were able to attend and give
comments regarding several concerns, namely how schools and
universities implement grievance procedures, provide fair and
prompt resolution of reports of sexual harassment and
discrimination, address sexual orientation and gender identity, and
preventing discrimination in the form of sexual harassment in
educational settings. A full transcript of the 2021 Title IX Public
Hearings can be found here.
Questions and Answers: A Brief Summary
On July 20, 2021, the DOE released “Questions and Answers” addressing the
Amendments and the 2021 hearings. The Amendments focus on setting
forth requirements for institutional responses
to sexual harassment. However, the DOE has made it clear that
institutions should also place emphasis
on preventing sexual harassment. The following
is a brief summary of particularly notable guidance included in the
new Questions and Answers and institutions are encouraged to review
the Questions and Answers in their entirety.
Where Sexual Harassment Occurs
The Amendments apply to harassment in educational programs and
activities, including school buildings, off-campus buildings
controlled by an officially recognized student organization by a
postsecondary school, off-campus settings where a school exercised
substantial control over the respondent and situations in which the
harassment occurred, as well as remote-learning platforms
that are a part of the school’s operations.
Technology that is a part of a school’s operations includes
“computer and internet networks, digital platforms, and
computer hardware or software owned or operated by, or used in the
operations of, the [school.]” The definition of
“education program or activity” in the Amendments does
not distinguish between harassment occurring in person versus
online. However, even in remote learning platforms, harassment
taking place outside of the United States is not covered under the
Amendments.
When Harassment Occurred
The Amendments are not required to be applied retroactively and
only apply to sexual harassment that took place on or after August
14, 2020. However, institutions should be mindful of caselaw that
holds otherwise, such as Doe v. RPI in the Northern District of
New York.
Formal Complaints
A Title IX Coordinator may, and in some cases is required to,
file a formal complaint on behalf of a complainant who
is not associated with the school in anyway. For
example, a school may be found deliberately indifferent if a Title
IX Coordinator does not sign a formal complaint despite having
actual knowledge of a pattern of harassment in certain situations
that involved a complainant or complainants not associated with the
school. Additionally, if the complainant is not “participating
in or attempting to participate in the school’s education
program or activity,” as is required for that complainant to
be eligible under the Amendments to file a formal complaint, a
school can respond under its own code of conduct.
When a Party or Witness is Unable to Participate in Title
IX Process
A school can temporarily postpone Title IX proceedings for good
cause. Good cause does not include the COVID-19
pandemic. Thus, an institution “may not adopt a policy of
putting investigations or proceedings on hold due to
COVID-19.” A school must inform all parties involved of the
postponement and provide fair reason.
Retaliation and Amnesty
Schools may not punish any party or witness for violating other
school policies (e.g. a COVID-19 contact policy) during a reported
incident of sexual harassment unless that other policy always
imposes the same punishment regardless of circumstances. Otherwise,
this will be considered retaliation if the punishment interferes
with any Title IX right or privilege. Amnesty policies are
encouraged to report instances of sexual harassment.
Additional Information
Pre- and post-secondary institutions can expect further updates
on this matter as it becomes available. Cullen and Dykman LLP will
continue to provide update alerts to keep schools, colleges, and
universities informed on the latest developments concerning Title
IX regulations and enforcement.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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