We were all anxiously expecting Title IX regulations in September, and yet here we are on October 1 with no sign of new regs in sight. Whether you are a newly appointed Title IX Coordinator or investigator looking for a quick primer on Title IX and your school’s responsibilities, a seasoned administrator wondering what OCR’s position is now on handling requests to keep sexual harassment reports confidential, or just confused about what guidance documents are still in effect at OCR, there is no better time for a refresher on what laws and guidance matter now for OCR investigations on Title IX. Here is a quick summary on what you should know and where to find it.
OCR proposed new regulations in January 2019. For years prior to that, the U.S. Department of Education Office for Civil Rights issued Dear Colleague Letters (DCLs) that steered and shaped educational institutions’ responses to campus sexual harassment and violence. But OCR withdrew several of those guidance documents under the Trump Administration, including the 2011 Dear Colleague Letter on Sexual Violence and the 2014 Q&A Guidance on Sexual Violence.
Until the proposed rules are finalized (which they may or may not ever be) or OCR says otherwise, what should Title IX administrators use? The current regulations and the following guidance documents remain the key documents on which OCR has said it will continue to rely:
- 2001 Revised Sexual Harassment Guidance: This 39-page guidance document details educational institutions’ obligations to respond to sexual harassment (including sexual assault) by teachers and school employees, as well as by other students or third parties. The guidance reviews the definition of sexual harassment; covers specific issues like confidentiality, the role of grievance procedures, and the First Amendment; and is the current go-to resource for Title IX Coordinators and investigators. This is probably the most important resource for Title IX administrators today as OCR relies on this document extensively when investigating Title IX complaints.
- 2015 Title IX Resource Guide: This guide provides an overview of the various issues that fall within the scope of Title IX and schools’ obligations to address each of them, including sex-based harassment; pregnant and parenting students; discipline; athletics; financial assistance; recruitment, admissions and counseling; employment and retaliation. This guide is a must-read for all Title IX Coordinators.
- 2017 Q&A on Campus Sexual Misconduct: OCR issued this guidance document at the same time that it withdrew the 2011 and 2014 guidance. Along with referring schools to the 2001 Guidance, OCR provided this guidance as “interim” guidance on which it would rely when determining schools’ compliance with Title IX. Stressing the importance of providing an equitable resolution of complaints of sex discrimination (including sexual misconduct), this guidance reveals the Office’s current position and expectations of schools.
Until new regulations and guidance are issued, I recommend all Title IX Coordinators, investigators, and key staff be familiar with the above documents. Although it is imperative to include legal counsel when addressing complaints of sexual harassment, referencing these materials often can help ensure your institution’s compliance with Title IX. Keep hard copies at your desk and PDFs accessible on your laptop, or bookmark the link to this blog post as a quick reference.
In addition to the above, the following OCR guidance documents are also still “active” and can serve as helpful resources when faced with particular issues under Title IX:
- 2014 Q&A on Title IX and Single Sex Elementary and Secondary Classes and Extracurricular Activities
- 2013 Guidance on Supporting the Academic Success of Pregnant and Parenting Students
- 2010 Guidance on Schools’ Obligations to Protect Students from Student-on-Student Harassment on the Basis of Sex; Race; Color and National Origin; and Disability
- 2010 Guidance on Accommodating Students’ Athletic Interests and Abilities: Standards for Part Three of the “Three Part Test” and related Q&A
- 2008 Guidance on Determining which Athletic Activities Can Be Counted for Purposes of Title IX Compliance
- 2008 Title IX Athletics Three-Part Test
All of OCR’s Title IX guidance documents are available on its website and are worth your time to peruse, even if only quickly.
Of course, the above-referenced documents do not provide all of the answers to questions that Title IX Coordinators and investigators may face. Consultation with legal counsel is still critical. But being familiar with these documents and being able to rely on them in addition to legal counsel when facing any Title IX situation, from the most unique to the most typical, is a key step to Title IX compliance.