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THE DEPARTMENT’S TITLE IX RULE PROVIDES FLEXIBILITY TO SCHOOLS WITH RESPECT TO DECISION-MAKERS

September 3, 2020
Protecting Students: Sex Discrimination

 

The OPEN Center has recently received questions regarding the responsibilities of a decision-maker in a Title IX due process hearing under the new Rule.  (Please note that all references and citations are to the unofficial version of the final regulations, which are available here.  A link to the official version of the Rule published in the Federal Register is here.)

The Title IX Rule, at § 106.45(b)(7), requires a postsecondary education recipient’s decision-maker(s) to issue a written determination that must include, among other items, the result as to each allegation and rationale for the result, any disciplinary sanctions imposed by the recipient against the respondent, and whether remedies will be provided by the recipient to the complainant.

The Rule does not preclude a recipient from using one decision-maker to reach the determination regarding responsibility, and using another decision-maker, who may be an employee or administrator of the recipient (e.g., a tenure committee), to determine appropriate disciplinary sanctions, including making such decisions in separate hearings.  However, both the determination finding responsibility and disciplinary sanctions imposed by the recipient against the respondent must be contained in one single, unitary document, which is the written determination required under §106.45(b)(7).  In other words, the recipient’s written determination may not be issued piecemeal, as different parts of the grievance proceedings occur.

Recipients should also keep in mind their duty to conclude the grievance process within the reasonably prompt time frames designated in the recipient’s grievance process under §106.45(b)(1)(v).  Additionally, each decision-maker—whether an employee of the recipient or an employee of a third party, such as a consortium of schools—owes an individual and ongoing duty under § 106.45(b)(1)(iii) not to have a conflict of interest, or bias for or against a single complainant or multiple complainants or respondents.

OCR’s OPEN Center provides this response as technical assistance to answer stakeholders’ questions about the new Title IX Rule.  Please note that the response provided to you by OCR is not legal advice and does not constitute an OCR determination regarding the compliance or non-compliance with respect to the new Rule.  OCR does not provide advisory opinions, and determinations about a recipient’s compliance with civil rights laws like Title IX are made only after OCR has investigated a complaint filed with OCR, in accordance with OCR’s Case Processing Manual.

The Department’s Title IX Rule was effective on August 14, 2020, and is not retroactive.  OCR will not apply the Rule to sexual harassment that allegedly occurred prior to August 14, 2020.  The Rule, and the Department’s commentary about the Rule, can be viewed here; page references to the Rule or Preamble are to that version of the Rule and commentary found at that link.  

Additional technical assistance materials from the OPEN Center are available here.



   
Last Modified: 09/03/2020