Review of Department of Education’s July 2021 Q&A on the Title IX Regulations

In this 30-minute webinar, Josh Richards, a Partner with Saul Ewing Arnstein & Lehr and a Title IX expert, highlights issues of significance for school officials in the recently released Q&A from the Department of Education’s (ED's) Office for Civil Rights (OCR).

The discussion focuses on topics of interest to Title IX coordinators and personnel, administrators, student affairs professionals, legal counsel, athletic department staff, and other employees with Title IX oversight or implementation responsibilities.

Josh Richards provided this update on a significant development after the webinar:

As discussed during the webinar, in a July 28, 2021 order a federal district court judge in Massachusetts held the “statements" provision in the 2020 Title IX regulations – excluding "statements" whose speaker didn’t submit to cross-examination at a live hearing – was “arbitrary and capricious.” The court’s July 28 order explicitly didn’t enjoin enforcement of the statements provision and instead remanded the provision to the ED for further explanation.

On August 10, 2021, Judge Young issued a clarification order in response to a joint motion by the parties asking about the practical effect of his July 28 ruling on the statements provision, and specifically whether the original order merely remanded or remanded and vacated the provision, declaring it unenforceable.

Although Judge Young’s August 10 order doesn’t discuss enforcement, it clarifies that the portion of the regulations excluding consideration of statements not subject to cross examination at a live hearing was vacated – meaning it is null and void, which should also mean that provision can’t be enforced anywhere in the United States — as of July 28.

Stay tuned. It’s possible that a party to the litigation will appeal the ruling or that ED will say something more about this issue. However, for now, it appears schools that incorporated the rule about excluding these statements in their policies can — if they wish — consider making a change without violating the 2020 regulations. Since any changes to policies may also be impacted by jurisdiction-specific law, schools should consult with counsel before making any policy changes.

On Aug. 24, 2021, the Department of Education announced that, consistent with the court's ruling, it will not enforce the specific provision of the 2020 regulations requiring exclusion of statements by a party or witness who does not submit to cross-examination at a hearing.