The mission of the US Department of Education’s Office for Civil Rights (OCR) is to ensure equal access to education for all students, from pre-K through elementary and secondary schools to postsecondary institutions, as guaranteed by Title IX of the Education Amendments of 1972. This includes protecting the rights of students to an educational environment free from discrimination based on sex, now including sexual harassment and discrimination based on sexual orientation or gender identity.
On July 20, the Education Department issued a Q&A resource, which sets forth OCR’s interpretation of the responsibility of schools under Title IX, focusing on questions related to the Trump administration’s 2020 amendments to the regulations, found at 34 CFR Part 106.
Meanwhile, President Biden issued an “Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” Accordingly, the Education Department will conduct a comprehensive review of the Title IX regulations as amended in 2020. This review will be ongoing, and in the meantime, the 2020 amendments remain in effect.
The Q&A does not address sex discrimination or harassment in employment under Title VII of the Civil rights Act of 1964, nor should it be used in the interpretation of policies or procedures thereunder.
The comprehensive Q&A consists of 67 questions and answers in 17 sections, providing, among other things, the definition of sexual harassment; how a school can obtain notice of sexual harassment; how a school should respond to allegations of sexual harassment; and how a school is to process formal complaints of sexual harassment, including live hearings and cross examination. There is also an appendix of 17 sections containing example policies from elementary, secondary, and postsecondary schools.
The Q&A document is available here.
If you have any questions regarding the content of this alert, please contact Penny Mason, of counsel, at mmason@barclaydamon.com, or another member of the firm’s Higher Education Practice Area.