On April 6, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR or the Department) announced a comprehensive review of the Department’s Title IX regulations, as part of implementing President Biden’s March 8 Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.
In a letter to students, educators, and other stakeholders, OCR explained that it will gather feedback from as many interested parties as possible to determine whether changes or additions to the Department’s existing regulations, orders, guidance, policies, and any other similar agency actions—including the May 2020 Title IX regulations—may be necessary to fulfill the Executive Order and the Department’s commitment to ensuring equal and nondiscriminatory access to education for students at all educational levels.
The letter sets forth three steps that OCR plans to take:
- Upcoming Public Hearing – To allow OCR to hear from as many interested parties as possible regarding these issues, the Department plans to hold a public hearing in which students, educators, and others with interest and expertise in Title IX will be able to participate by offering oral comments and written submissions. OCR expects to announce the dates and times for this hearing in the coming weeks. More information regarding this public hearing, including dates, times, and how to register to participate and speak, will be published on the News Room section of OCR’s website (https://www.ed.gov/ocr/newsroom.html).
- Forthcoming Q&A – Notably, OCR confirms that the May 2020 Title IX regulations remain in effect. However, to assist schools, students, and others, OCR announced that it plans to issue a question-and-answer document in the coming months to provide additional clarity about how OCR interprets schools’ existing obligations under the May 2020 Title IX regulations, including the areas in which schools have discretion in their procedures for responding to reports of sexual harassment.
- Notice of Proposed Rulemaking (Anticipated) – After hearing from the public and completing its review of the Department’s May 2020 Title IX regulations and other agency actions, OCR anticipates publishing in the Federal Register a notice of proposed rulemaking to amend the May 2020 Title IX regulations. This notice will provide individuals, organizations, schools, and other members of the public with an additional opportunity to share insights and views through a formal notice-and-comment period.
Similar to the March 8 Executive Order, this announcement from OCR does not provide any immediate changes to the way school districts, colleges and universities must handle sexual harassment complaints, but it sends a clear message that changes are on the way. However, the announced process also signals that any significant changes to the Title IX regulations will take time. Thus, it is important that schools continue to follow the requirements of the May 2020 Title IX regulations, which include utilizing the comprehensive grievance process for responding to allegations of sexual harassment, until new guidance and/or regulations are released.
For questions about this new announcement or about the Title IX regulations, please contact any member of our School Law Group.