The Legal Brief: New Title IX Q&A Guidance Issued by DOE

On September 4, 2020, the U.S. Department of Education’s Office for Civil Rights issued a Questions & Answers guidance relating to the new Title IX regulations, which went into effect on August 14, 2020. Below are highlights from the Q&A guidance document:

  1. DOE clarifies that the new Title IX regulations will not be enforced retroactively.
  2. The Title IX Rule allows schools to continue to address misconduct that does not meet the definition of sexual harassment.(Indeed, you should or, in some cases, must do so based on your district code of conduct or Texas law.)  The school’s “Title IX Personnel,” moreover, i.e., the Title IX Coordinators, Investigators, Decision-Makers and Informal Resolution Facilitators, are not precluded from reviewing and investigating allegations of misconduct that fall outside the scope of Title IX.
  3. With regard to hostile environment as a form of sexual harassment, the offending conduct must effectively deny a person equal access to the recipient’s education program or activity.  But can “effective denial” be something that a reasonable person would experience, even if there is not evidence to show that the Complainant was in effect effectively denied?  In short, yes.Quoting the Preamble to the Title IX Rule, OCR notes:

Evaluating whether a reasonable person in the complainant’s position would deem the alleged harassment to deny a person “equal access” to education protects complainants against school officials inappropriately judging how a complainant has reacted to the sexual harassment.  The [34 CFR] § 106.30 definition neither requires nor permits school officials to impose notions of what a “perfect victim” does or says, nor may a recipient refuse to respond to sexual harassment because a complainant is “high-functioning” or not showing particular symptoms following a sexual harassment incident.

Further citing the Preamble, OCR observes:

Signs of enduring unequal educational access due to severe, pervasive, and objectively offensive sexual harassment may include, as commentators suggest, skipping class to avoid a harasser, a decline in a student’s grade point average, or having difficulty concentrating in class; however, no concrete injury is required to conclude that serious harassment would deprive a reasonable person in the complainant’s position of the ability to access the recipient’s education program or activity on an equal bases with persons who are not suffering such harassment.

  1. The Title IX regulations may protect students who withdraw and then file a Formal Title IX Complaint or who file a Formal Complaint and then withdraw. OCR explains that the regulations protect students and others who are participating and attempting to participate in the school’s program or activity.  OCR quotes, in part, the Preamble to the Title IX Rule for support, with emphasis on the following:

By way of further example, a complainant who has left school because of sexual harassment, but expresses a desire to re-enroll if the recipient appropriately responds to the sexual harassment, is “attempting to participate” in the recipient’s education program or activity.

Relatedly, the Q&A document advises that a Title IX Coordinator’s decision to sign a formal complaint or not is evaluated under the deliberate indifference standard:  whether the decision was clearly unreasonable in light of the known circumstances.

  1. The Q&A guidance also addresses procedures for hearings on the determination of responsibility, which are required for higher education institutions but not for K-12.  Probably most K-12 schools will not choose to hold hearings to determine responsibility.  In any event, the Q&A guidance on relevant evidence at live hearing may be helpful in K-12 deliberation as to what constitutes relevant evidence for purposes of investigation or decision-making. The guidance document notes that the Title IX Rules does not adopt the Federal Rules of Evidence for hearings under Title IX.  It also provides that a recipient may not adopt evidentiary rules of admissibility that contravene the evidentiary requirements prescribed in the regulations (specifically at 34 CFR § 106.45).  As to whether recipients may define relevance on their own, OCR quotes, in part, the Preamble to the Title IX Rule:

Relevance is the standard that these final regulations require, and any evidentiary rules that a recipient chooses must respect this standard of evidence.  For example, a recipient may not adopt a rule excluding relevant evidence because such relevant evidence may be unduly prejudicial, concern prior bad acts, or constitute character evidence.

The guidance document also notes there is a difference between the admission of relevant evidence and the weight, credibility or persuasiveness of particular evidence.

The complete OCR Title IX Q&A guidance document issued on September 4, 2020 is available at this link: Click Here 

Written By: John J. Janssen