THE TITLE IX RULE IS EFFECTIVE ON AUGUST 14, 2020, AND IS NOT RETROACTIVE
August 5, 2020
As schools plan and prepare for implementation of the new Title IX Rule, which is effective on August 14, 2020, the Office for Civil Rights (OCR) has received a number of questions regarding whether the Title IX Rule applies retroactively. It does not. OCR will enforce the new Title IX Rule only when it becomes effective, and will enforce the new Rule prospectively. OCR provides further technical assistance information below to assist schools in preparing to comply with the new Title IX Rule. Citations are to the unofficial version of the Rule, which is available here.
In the Preamble to the Rule at page 127, the Department states unambiguously that the Department will not enforce these final regulations retroactively. The Department also notes, in footnote 290 of the Rule, the general principle that:
Federal agencies authorized by statute to promulgate rules may only create rules with retroactive effect where the authorizing statute has expressly granted such authority. See 5 U.S.C. 551 (referring to a “rule” as agency action with “future effects” in the Administrative Procedure Act); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”).
Consistent with the Department’s statements in the preamble to the Title IX Rule regarding non-retroactivity, the Rule does not apply to schools’ responses to sexual harassment that allegedly occurred prior to August 14, 2020. The Department will only enforce the Rule as to sexual harassment that allegedly occurred on or after August 14, 2020. With respect to sexual harassment that allegedly occurred prior to August 14, 2020, OCR will judge the school’s Title IX compliance against the Title IX statute and the Title IX regulations in place at the time that the alleged sexual harassment occurred. In other words, the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.
OCR’s Center for Outreach, Prevention, Education, and Nondiscrimination (“OPEN Center”) will continue to provide updates regarding technical assistance and other important information as needed on the OCR blog. If you have questions or require technical assistance, please contact T9questions@ed.gov.