The U.S. Department of Education Office for Civil Rights issued an 11-page guidance document entitled “Questions and Answers Regarding the Department’s Final Title IX Rule” on September 4, 2020. The Department issued guidance in response to inquiries received by OCR’s new Center for Outreach, Prevention, Education, and Nondiscrimination (OPEN Center).
The guidance addressed questions regarding the effective date of the final regulations, the Title IX coordinator and personnel issues, the definition of sexual harassment, the filing of a formal complaint, and conducting an investigation hearing.
The guidance states that if a complainant either withdrew from school because of sexual harassment and then filed a complaint, or filed a complaint but then withdrew as a result of the sexual harassment or stress of the grievance process, the educational entity has a duty to respond to the report in a manner that is not “deliberately indifferent,” or clearly unreasonable in light of known circumstances. The complainant may still be “attempting to participate” in the entity’s education program or activity if they intend to re-apply or re-enroll if the educational entity appropriately responds to the sexual harassment, which triggers the educational entity’s grievance process.
The guidance also stated that if a complainant did not appear at a live hearing required at the postsecondary level, or chose to not answer cross-examination questions, the Decision-Maker cannot rely upon any statement the complainant made that did not benefit from the “truth-seeking function of cross-examination” in reaching a determination regarding responsibility. This effective excludes all statements provided by the complainant before the hearing—including statements made to the investigator and summarized in the investigation report.
The guidance also approved of a bifurcated grievance process that divides hearings at the postsecondary level between a “responsibility” phase and a “sanctions” phase. The regulations did not preclude a recipient from using one decision-maker to reach the determination regarding responsibility and having another decision-maker determine appropriate remedies for a complainant or appropriate disciplinary sanctions for the respondent. Ultimately, the written determination regarding responsibility must include the remedies and disciplinary sanctions, among other information, and the entity must issue the written determination within the reasonably prompt time frames designated in the entity’s grievance process.
Read the Questions and Answers guidance here.
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