Home > Alerts > OCR Releases Questions and Answers on the Title IX Regulations on Sexual Harassment, Providing Insight on How the Department Interprets the 2020 Amendments Ahead of an Anticipated Notice of Proposed Rulemaking, and Important Court Decisions Follow

OCR Releases Questions and Answers on the Title IX Regulations on Sexual Harassment, Providing Insight on How the Department Interprets the 2020 Amendments Ahead of an Anticipated Notice of Proposed Rulemaking, and Important Court Decisions Follow

Posted: 08/12/2021
Industries: Higher Education

On July 20, 2021, the U.S. Department of Education’s (the “Department”) Office for Civil Rights (“OCR”) issued its Questions and Answers on the Title IX Regulations on Sexual Harassment (“Q&A”), which clarifies OCR’s interpretation of schools’ responsibilities under Title IX and the Department’s amendments to the regulations in 2020 (the “2020 Amendments”). The Q&A is a part of the Department’s comprehensive review of current Title IX regulations following President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.[1] The Q&A’s release follows June’s public hearing on the Department’s enforcement of Title IX, where the Department received live comments from more than 280 students, educators, and other stakeholders. While the Biden Administration has plans to release a notice of proposed rulemaking in May 2022, the Q&A reaffirms that, in the interim, the 2020 Amendments remain in effect.

What You Need to Know:

The Q&A includes sixty-seven questions and answers covering seventeen different topics clarifying OCR’s interpretation of schools’ responsibilities under Title IX and the Department’s amendments to the regulations in 2020. Major points of interest include:

  • Elements of the 2020 Amendments endorsed by the Q&A;
  • Points of departure from the 2020 Amendments; and
  • A significant change regarding applicability of the 2020 Amendments.

The Q&A draws on the preamble to, and text of, the 2020 Amendments, though the preamble itself does not have the force and effect of law. OCR’s focus on compliance with the 2020 Amendments is noteworthy as many expected the Department to issue guidance that more substantially differs from the treatment of Title IX under the prior administration. Instead, the Q&A reads more like an endorsement of the 2020 Amendments accompanied by a few points of departure. The Q&A emphasizes that the 2020 Amendments set a floor for schools in responding to notice of alleged sexual harassment and contemplates areas where schools may exercise discretion and go beyond those minimum requirements. Analyzing these focal points of the Q&A provides insight into what may be included in the forthcoming notice of proposed rulemaking.

Elements of the 2020 Amendments endorsed by the Q&A:

  • Notice of sexual harassment requiring an institutional response. The Q&A devotes six questions to reporting requirements. The 2020 Amendments require that elementary and secondary schools respond whenever any school employee has notice of sexual harassment. Postsecondary institutions must respond when notice is received by the Title IX Coordinator or another official who has authority to institute corrective measures on the institution’s behalf, irrespective of how the official obtains the information (and whether they’re “on” or “off” duty). The Q&A explains that postsecondary schools have discretion to designate specific employees with such authority to whom notice of alleged sexual harassment will trigger institutional notice for Title IX purposes. Schools also have the option of publishing a list of officials with this authority. Further, postsecondary schools have discretion to determine which of their employees are mandatory reporters (if any) and which employees may keep a student’s disclosure about sexual harassment confidential. Being designated a mandatory reporter creates an obligation to report sexual harassment but does not qualify an individual as an official who has authority to institute corrective measures on the institution’s behalf. (Questions 14-19.)
  • Responding to allegations that do not require a response under Title IX. The Q&A states that schools have discretion to respond to reports of sexual misconduct that do not fit within the scope of conduct covered by Title IX processes. This may include conduct that: occurs outside of a school’s education program or activity; occurs outside of the United States; or causes harm but does not fit within the definition of sexual harassment set out by the 2020 Amendments. (Question 7.)
  • Admissibility of statements by parties who do not participate in cross-examination at a live hearing. Under the 2020 Amendments, postsecondary schools are required to hold live hearings as a part of their Title IX grievance process. Live hearings must include cross-examination where each party’s advisor is permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. The Q&A highlights that if a party or witness does not submit to cross-examination, even due to death or disability, the decision-maker may not rely on that individual’s statements—including assertions of fact—in determining whether the respondent engaged in the alleged sexual harassment. However, the decision-maker may rely on non-statement evidence of sexual harassment involving an individual including photos, videos, or emails regardless of whether the individual submits to cross-examination. (Questions 51-55.) Note that shortly after the publication of the Q&A, a federal court in the District of Massachusetts vacated this rule on statements being excluded unless the speaker submits to cross-examination. See Victim Rts. L. Ctr. v. Cardona, No. CV 20-11104-WGY, 2021 WL 3516475, at *2 (D. Mass. Aug. 10, 2021). The court explained that “section 106.45(b)(6)(i)’s prohibition on all statements not subject to cross-examination was arbitrary and capricious in violation of section 706(2)(A) of the Administrative Procedure Act (‘APA’)” and, “[a]ccordingly, section 106.45(b)(6)(i)’s prohibition was vacated as well as remanded on July 28, as is the usual course in successful APA challenges.” Schools with this rule memorialized in their policies seem to now have some space from a compliance perspective to explore a change.

Points of departure from the 2020 Amendments:

  • A potential obligation for a Title IX response even when a complainant is not participating in a school’s education program or activity. The Q&A explains that, even when a complainant is not associated with the school in any way, the school’s Title IX coordinator may sign a formal complaint. Further, the Q&A takes the position that a failure to do so may amount to deliberate indifference if a school “has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority.” This is based on a school’s Title IX obligation to provide all students with an educational environment free from sex-based discrimination. (Question 24.)
  • Limitations on cross-examination to protect the parties’ well-being. Despite emphasizing the live hearing and cross-examination requirements under the 2020 Amendments, the Q&A highlights how schools may exercise discretion in this area. Schools may implement rules regarding how live hearings are conducted, including rules of decorum that prohibit advisors from questioning parties or witnesses in an abusive, intimidating, or disrespectful manner. Schools also have discretion to institute measures to protect the parties during cross-examination, like excluding questions that are not relevant or are duplicative or repetitive, permitting breaks during a live hearing, or requiring a pause during cross-examination between questions and answers in order for the decision-maker to consider if the question is relevant. (Questions 44, 46, 49.)
  • Response to non-sexual harassment complaints of sex discrimination. The Q&A explains that the grievance process required under the 2020 Amendments for complaints of sexual harassment does not apply to complaints alleging discrimination based on pregnancy, different treatment based on sex, or other forms of sex discrimination. Instead, the Q&A states that schools must respond to such complaints using a prompt and equitable grievance procedure as required by the original 1975 regulations. The Q&A further explains that in determining whether a grievance procedure is prompt and equitable, OCR has historically examined the following: whether and how schools have communicated information about their procedures, including where to file complaints, to students, parents/caregivers (for elementary and secondary school students), and employees; whether the procedures have provided for adequate, reliable, and impartial investigation of complaints; whether the procedures have designated reasonably prompt time frames for the complaint and resolution process; and whether the procedures have provided for notice to the parties of the outcome of a complaint. (Questions 64-65.)

A significant change regarding applicability of the 2020 Amendments:

Schools should take note that the Q&A specifically emphasizes that the 2020 Amendments are not retroactive and do not apply to alleged sexual harassment occurring before August 14, 2020, regardless of when a complaint was filed or when a school responded to notice of the harassment. Instead, schools “must follow the requirements of the Title IX statute and the regulations that were in place at the time of the alleged incident.” For instances of alleged sexual harassment that took place outside of this time frame, the Q&A notes that the Title IX regulations did not have specific requirements for schools related to sexual harassment prior to the 2020 Amendments, and instead points schools to several, now-rescinded guidance documents “to the extent they are helpful to schools when responding to earlier allegations of sexual harassment.” Here, OCR has implied that schools should respond to allegations of sexual harassment that predate the 2020 Amendments differently, but has not provided any firm guidance on what that response should entail. Likewise, the Q&A does not address allegations of conduct that may have occurred before and after August 14, 2020. (Question 13.) This Answer poses significant potential compliance concerns, and we hope that OCR may provide further clarification on this point soon.

Saul Ewing Arnstein & Lehr will continue to monitor these developments. If you have questions about the Q&A, this alert, or other Title IX issues, please reach out to your regular Saul contact or the authors.


  1. Exec. Order 14021, 86 Fed. Reg. 13,803 (March 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf