The 2021-2022 school year has been dominated by COVID-related news – will schools open, will they remain open, how will schools manage the omicron variant? For those of you who have not had the time to follow Title IX developments, much has been happening.
New Head of OCR – Catherine Lhamon has returned to the role that she held under the Obama administration – Assistant Secretary for the U.S. Department of Education’s Office for Civil Rights (OCR). Lhamon spearheaded changes to the enforcement of Title IX through guidance documents. Most would describe those changes as leaning toward requiring victim-centric policies at educational institutions. All guidance issued from OCR during Lhamon’s leadership was withdrawn during the leadership term of U.S. Department of Education Secretary Betsy DeVos under the Trump administration with regulations put in place that focused on the due process rights of students. Many education administrators were unhappy with these regulations, but compliance with them is mandatory as they have the force and effect of law.
Another Rulemaking Process – Lhamon’s approach in her leadership of OCR is a bit different this time around. Instead of issuing guidance documents, she has signaled that she will undertake the more time-consuming rulemaking process. If this sounds familiar, you may remember that the regulations (“Final Rules”) issued in May of 2020 (effective August 2020) went through this same process, and it took over 18-months to complete. Since OCR began gathering feedback in June 2021, we can expect that this process may move more quickly, but it is neither a simple nor expeditious process. After the rulemaking process is complete, we will have new regulations that have the force and effect of law. We can expect these regulations to look substantially different from the Final Rules on Title IX, issued in 2020, that are in effect today. However, it is important to note that the Final Rules remain in effect, and institutions should be following the process set forth in those regulations until we receive additional guidance from OCR.
Possible Changes – Educational institutions have wish-lists about potential changes that they would like to see in these new regulations. Some areas where we can expect shifts include:
- Notice of sexual harassment
- Hearings at higher education level
- Cross-examination process
- Supportive/interim measures
- Gender identity
Unfortunately, there is no way to predict how limited or sweeping these changes might be. We will get our first glimpse of what the new regulations might look like in April of 2022, when OCR will issue their proposed guidance. In the meantime, schools must continue to enforce the Final Rules, conduct investigations consistent with those regulations, and train staff to understand both the spirit and the letter of the law. The time is now to identify your key Title IX staff (coordinator, investigators, decision-makers) and ensure they are properly trained.
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