The U.S. Department of Education’s Office for Civil Rights (OCR) provided notice of the actions it plans to take to implement the directives of President Joseph R. Biden’s March 8 Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation, or Gender Identity (the “Order”). The Order states the Biden Administration’s policy that:

“all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

The Order directs the Secretary of Education to review the Department’s existing regulations, orders, guidance, policies, and other agency actions, including the 2020 amendments to the Title IX regulations (the “Title IX 2020 Final Rule”). As part of the review, OCR seeks to hear from stakeholders and provide clarification regarding compliance obligations under the Title IX 2020 Final Rule, with the following actions:

• Upcoming Public Hearing. Students, educators, and other interested parties will have an opportunity to submit oral or written comments at a public hearing. The date and time are to be determined. Information about the hearing will be published on the News Room section of OCR’s website. 

• Forthcoming Q&A. OCR plans to issue a question-and-answer document in the coming months to clarify how it interprets schools’ existing obligations under the Title IX 2020 Final Rule, including areas where schools have discretion in their procedures for responding to reports of sexual harassment.

• Anticipated Notice of Proposed Rulemaking. As discussed in a prior Title IX alert, the Biden Administration will potentially be scaling back the Title IX 2020 Final Rule, but this effort will be subject to the formal – and likely lengthy – rulemaking process. OCR’s notice confirms that it anticipates proposing amendments, and will publish a proposed rulemaking and providing members of the public an opportunity to share feedback through a formal notice-and-comment period.

 The Title IX 2020 Final Rule remains in effect.

We will monitor this situation and provide information on any new developments. Should you have any questions about this, or any other issue impacting schools, please do not hesitate to contact any of the attorneys in the Appel, Yost & Zee Education group.