Education Law Update: United States Department of Education Issues Q&A on Title IX’s 2020 Amendments

Our school clients should be made aware of a Question and Answer Sheet (“Q&A”) (which can be found here) recently issued by the United States Department of Education Office for Civil Rights (the “OCR”) with respect to Title IX and its 2020 Amendments (the “2020 Amendments”) to its regulations. The Q&A gives insight as to how President Biden’s Administration may interpret the 2020 Amendments.

The Q&A addresses a litany of topics regarding Title IX and sexual harassment. Most notably, the Q&A addressed the definition of sexual harassment and how schools should process formal complaints of sexual harassment in light of the 2020 Amendments. In issuing the Q&A, the OCR acknowledged that the document “does not have the force and effect of law and is not meant to bind public or regulated entities in any way.” The OCR explained that the purpose of the Q&A is to “provide clarity to the public regarding OCR’s interpretation of existing and legally binding statutory and regulatory requirements.”

What we can glean from the Q&A is that the OCR will broadly define “sexual harassment” and encourages schools to address a broader scope of conduct through other conduct policies. The Q&A makes clear that Title IX’s sexual harassment regulation “need not replace a school’s more expansive code of conduct and does not prohibit a school from enforcing that code to address misconduct that does not constitute sexual harassment under the 2020 amendments.” The Q&A expressly states that the OCR encourages schools to develop and enforce their codes of conduct as an additional tool for ensuring safe and supportive educational environments for all students. While the OCR does not enforce school codes of conduct, it may investigate complaints that a school’s code of conduct treated students differently based on sex, including sexual orientation, or gender identity.

The Q&A suggests that schools should include examples of how a student may be effectively denied equal access to education programs and activities in its training materials that it issues to students and employees. In doing so, however, OCR acknowledges that the definition of “sexual harassment” remains the definition in the Title IX regulations.

Some other key points to note in the Q&A are as follows:

  • OCR addressed that there is nothing in the Title IX regulations prohibiting a school from adopting a 60-day time frame for resolving sexual harassment complaints.
  • OCR noted that regardless of a complainant’s relationship with the school, the school’s Title IX officer may have a duty to institute an investigation in accordance with the school’s Title IX policy.
  • OCR emphasized that under the 2020 Amendments, a school may still offer “supportive measures to a complainant who reports sexual harassment that occurred outside the [school’s] education program or activity, and any sexual harassment that does occur in an education program or activity must be responded to even if it is related to, or happens subsequent to, sexual harassment that occurred outside the education program or activity.” This language is an apparent recognition that the OCR may broadly expand a school’s duty to address sexual harassment that occurred outside of the school setting.
  • The 2020 Amendments state that a school is not required to seek written assurance of its religious exemption under Title IX before claiming the exemption, and the regulations state that a school can invoke a religious exemption after OCR has received a complaint regarding the school. This is consistent with OCR’s handling of religious exemption requests dating back more than two decades.
  • The Q&A’s Appendix provides schools with examples of Title IX procedures that may be used by schools to adopt and implement the 2020 Amendments.

For more information about Title IX’s 2020 Amendments or the OCR’s recent Q&A, please contact Chris Barrett or your Barton Gilman education lawyer.

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