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By: Candice Jackson
The U.S. Department of Education (ED) announced today that to comply with President Biden’s Executive Order 14021, ED’s Office for Civil Rights (OCR) will commence a “comprehensive review” of ED’s 2020 Title IX sexual harassment regulations. The 2020 Title IX regulations, found at 34 C.F.R. Part 106, define sexual harassment, require schools to offer supportive measures to complainants, and require schools to provide procedural protections to complainants and respondents during school-level Title IX sexual harassment investigations.
In a letter to schools today, OCR stated that it plans to hold a public hearing in the coming weeks or months, whereby stakeholders and members of the public may express their views on whether the 2020 Title IX regulations ought to be modified. After soliciting public feedback via a hearing, OCR then intends to issue a notice of proposed rulemaking.
For many years now, schools have experienced the topic of Title IX sexual harassment as something of a political football, with the rules shifting under their feet depending on the policy goals of differing political administrations. However, as the prior administration learned, issuing Title IX rules by way of formal rulemaking compliant with the Administrative Procedure Act is an intensive process that takes time. With the current administration now indicating that it too will follow a rulemaking process instead of changing the rules by way of sub-regulatory guidance, the Title IX landscape likely won’t shift overnight.
The positive news for schools coming from today’s announcement by OCR is that the agency’s intent to follow a formal rulemaking process means that schools will have (1) plenty of notice before being required to once again rewrite their Title IX policies and procedures and (2) opportunity to participate in the rulemaking process as it moves along.
With questions about your institution’s Title IX policies and procedures or for more information about this topic, please contact Candice Jackson.