The Department of Education (Department) recently released Questions and Answers on the Title IX Regulations on Sexual Harassment (Q&As), which provides long-awaited insight into how the Department will enforce the 2020 Title IX Amendments (2020 Amendments) on sexual harassment enacted under President Trump. This guidance supplements what we previously reported on—the Notice of Interpretation—which informed how this Department will interpret Title IX's prohibition of discrimination on the basis of sex to include sexual orientation and gender identity. The Q&As do not add regulations or amend the 2020 Amendments. Rather, the guidance emphasizes that the 2020 Amendments remain in effect; however, it offers an interpretation and clarification of common misunderstandings of those amendments to help inform covered schools.
The highlighted topics below were confirmed and clarified by the Q&As for covered institutions of higher education (IHEs) and K-12 schools (together, with IHEs, Title IX Covered Institutions) to reference when applying the 2020 Amendments.
Applicability of Past Guidance. Title IX Covered Institutions must apply the regulations or guidance in effect at the time of the alleged sexual misconduct. The Q&As confirm that the 2020 Amendments are not retroactive, and that all investigations and proceedings arising from sexual misconduct that occurred before August 14, 2020 should apply the respective guidance by the Department's Office of Civil Rights (OCR), which are all accessible on the OCR's website.
Refining Definitions. Title IX Covered Institutions must evaluate "whether a reasonable person in the complainant's position would be effectively denied equal access to education compared to a similarly situated person who is not suffering the alleged sexual harassment" in determining whether a person has been effectively denied access to a Title IX Covered Institution's program or activity. Additionally, the OCR confirms a complainant does not need to suffer a loss of education or prove a concrete injury (such as a having a panic attack in class) to show a denial of a school program or activity.
Sexual Harassment in the Virtual World. Virtual or online conduct, including conduct on a student's personal device, can constitute sexual misconduct under Title IX if (1) it falls within the operations of a Title IX Covered Institution, (2) it is considered a part of a Title IX Covered Institution's program or activity, or (3) it occurred in circumstances over which the Title IX Covered Institution exercised control (i.e., using a campus computer).
Enrollment Status of Complainant and Respondent. Title IX Coordinators have the ability, and sometimes the duty, to file and sign a formal complaint even if the complainant has graduated, has withdrawn, is on a leave of absence, has applied for admission, or is not associated with the institution in any way. This is due to the stipulation that Title IX Covered Institutions have a "Title IX obligation to provide all students, not just the complainant, with an educational environment that does not discriminate based on sex." Additionally, even if the respondent is no longer at the institution, the Title IX Coordinator is required to inform the complainant about the availability of supportive measures and assess "whether a respondent still poses an ongoing risk to the community."
Mandatory Reporters. IHEs, specifically, have the discretion to determine which of their employees should be mandatory reporters if they receive notice of sexual harassment. The OCR encourages IHEs to publish a list of officials with this authority. In K-12 school settings, any school employee is required to respond if they receive notice of sexual harassment.
Receiving Notice. Title IX Covered Institutions can receive notice of sexual harassment through oral reports (by a complainant or anyone else), written reports, personal observations, newspaper articles, anonymous reports, or other various means.
Responding to Other Misconduct. Title IX Covered Institutions are encouraged to develop and enforce codes of conduct that cover misconduct beyond that which would fall under Title IX's definition of sexual harassment. Title IX Covered Institutions can, and should, respond to misconduct that does not meet the definition of sexual harassment under Title IX because "Title IX is not the exclusive remedy for sexual misconduct or traumatic events that affect students."
Supportive Measures During COVID-19. Title IX Covered Institutions must offer supportive measures even during the COVID-19 pandemic. The guidance advises that during the pandemic, such supportive measures can include remote counseling and teletherapy.
Potential Postponement of Proceedings. Title IX Covered Institutions can temporarily postpone Title IX grievance proceedings for good cause. In light of the current pandemic, good cause does not include COVID-19-related disruptions but can include a postponement of a hearing to accommodate a disability. Should a Title IX Covered Institution postpone the grievance process, it must inform all parties and provide a fair reason.
Amnesty Policies. Nothing in the 2020 Amendments precludes a Title IX Covered Institution from adopting an amnesty policy. An amnesty policy encourages students to report sexual harassment by allowing students to make such a report, as either a victim or a witness, without the fear of being penalized for other code of conduct violations (e.g., underage drinking at a party where the alleged sexual harassment occurred).
The Q&As also include an appendix of sample policies that can be instructive in creating Title IX policies for Title IX Covered Institutions. Further updates on the Title IX regulations should be expected as the Biden administration continues its review of the current landscape of Title IX regulations. As developments continue to unfold, attorneys in Venable's Labor and Employment Group will continue to keep Title IX Covered Institutions informed. Should Title IX Covered Institutions have any questions related to Title IX, please do not hesitate to reach out to the authors of this article or to any other attorney in Venable's Labor and Employment Group.