ON BEHALF OF ACTING ASSISTANT SECRETARY SUZANNE B. GOLDBERG
On August 24, the Office for Civil Rights issued a letter to students, educators, and other stakeholders regarding a recent court decision that impacts how the Title IX regulations on sexual harassment are applied at colleges and universities.
In a case challenging several provisions of the 2020 amendments to the Title IX regulations, a federal district court in Massachusetts vacated, as arbitrary and capricious, one part of 34 C.F.R. § 106.45(b)(6)(i). This vacated part prohibits decision-makers in Title IX proceedings at postsecondary institutions from considering any statement of a person who did not submit to cross-examination at the live hearing required by the regulations. The affected provision is only applicable to postsecondary institutions and does not apply to elementary or secondary schools, which are not required to provide for a live hearing with cross-examination. In a subsequent order issued on August 10, 2021, the court clarified that its decision applies nationwide.
As a result, the Department will no longer enforce the part of § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination. Postsecondary institutions are no longer subject to this part of the provision. All other provisions in the 2020 amendments remain in effect, including all other parts of 34 C.F.R. § 106.45(b)(6)(i), which sets out requirements for the live hearing process at postsecondary institutions.
As announced in an earlier April 6, 2021, letter to students, educators, and other stakeholders, OCR is continuing to undertake a comprehensive review of the Department’s actions under Title IX, consistent with President Biden’s Executive Order, dated March 8, 2021, on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. This process is ongoing, and OCR anticipates publishing a notice of proposed rulemaking to amend the Department’s Title IX regulations. This will provide the public with an opportunity to comment on the proposed amendments.