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On July 20, 2021, the U.S. Department of Education (ED) issued a Q&A to provide additional guidance for institutions navigating the changes to Title IX of the Civil Rights Act of 1964 that took effect last year. The Q&A clarifies how the Office for Civil Rights interprets institutions’ obligations under the changes made in 2020.
The document also includes an Appendix that provides example scenarios and the applicable Title IX procedures for institutions to reference. Some of the highlights from the new guidance are discussed below.
One of the main changes to the Title IX regulations in 2020 was the narrowing of what defined sexual harassment. As a result, institutions are required to investigate harassment only if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. ED guidance clarified that, while they are not obligated, institutions can still investigate an incident if it does not necessarily fall under the established definition of harassment.
The new regulations also stated that institutions are not required to investigate incidents that take place in off-campus locations. The ED has clarified this component by emphasizing “off-campus settings if the school exercised substantial control over the respondent and the context in which the alleged sexual harassment occurred (e.g., a school field trip to a museum), and off-campus buildings owned or controlled by a student organization officially recognized by a postsecondary school, such as a building owned by a recognized fraternity or sorority” as settings covered by the 2020 amendments.
For an institution to be required to respond to a harassment allegation under Title IX, certain personnel must be notified. Typically, this would include the institution’s Title IX Coordinator, but ED guidance states that the institution may designate other personnel as officials with the authority to institute corrective measures on the institution’s behalf. If any of the designated personnel are notified of misconduct, through verbal, written or various other means, the institution is required to respond under Title IX.
The new regulations also permit institutions to force accused students or personnel to leave campus if they appear to be a threat to others while a Title IX grievance process is pending. The institution must, however, provide the individual with notice and opportunity to challenge the decision immediately after the individual has been removed from campus.
Previous ED guidance suggested but did not require a 60-day time frame for institutions to resolve harassment complaints. This guidance has since been removed, causing a bit of confusion. The new guidance clarified that while the 60-day suggestion has been removed, there is nothing in the 2020 amendments prohibiting an institution from implementing a 60-day time frame. The main takeaway from this component of the new regulation is that the institution’s grievance process for formal complaints of misconduct must include “reasonably prompt time frames” under Title IX.
The final highlight from the new ED guidance is that if an individual involved in the investigation does not participate in the live hearings, any previous statements provided by that individual may not be relied upon by the decision-making party. The institution is permitted to use discretion to temporarily postpone the hearing for “good cause,” such as to accommodate a post-investigation disability sustained by one of the parties involved.
While the future of the regulations under Title IX is uncertain due to the shift in administrations, it is essential to keep up to date with the most recent guidance. Schneider Downs offers a variety of Risk Advisory Services that can help your institution navigate, implement and assist with your compliance objectives. For any additional questions, contact Schneider Downs.