ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

In the July 2022 NPRM, the Department provided the example of a student who reports that his peers repeatedly denigrated him as “girly” over a period of weeks. 87 FR 41417. In this example, if one peer made a one-off remark calling the student “girly,” that alone may not be severe or pervasive enough to create a hostile environment, but if multiple peers repeatedly call the student “girly,” then that same treatment may create a hostile environment for that student.

Similarly, if one student at a postsecondary institution made a derogatory comment to a pregnant student based on her pregnancy, that alone may not be sufficient to create a hostile environment, but if multiple people make similar comments to the same student based on pregnancy, that may create a hostile environment for the student. The Department notes that, when the elements of sex-based hostile environment are satisfied for an affected student, a recipient has an obligation to address that hostile environment, even if a particular respondent’s conduct does not justify discipline.

For example, in response to a hostile environment created by a series of incidents by different respondents, a recipient may offer supportive measures to the affected student or provide training for the broader school community.” Understood, but in the process of investigating this, to determine if it is severe or pervasive, who is the respondent? Is this addressed the same way other investigations would be under the regs, since we still need to determine if a hostile environment has been c

Partial removals – is there a definition of this term that OCR can offer?

Does peer retaliation apply only to students? Who are “peers” within the regs?

Can Program Legal provide any guidance for the distinction between “unwelcome” and “subjectively offensive” as it relates to the analysis for a Hostile Environment? It seems like the preamble combines these elements, functionally, into the same analysis…is that correct?

If a recipient takes off-campus jurisdiction for physical assaults involving students, must a recipient take off-campus jurisdiction for sexual assaults involving all populations (including employees) or just students?

In the definition of a complainant, OCR defines it as a “student or employee” OR a “person who is not a student or employee but was participating or attempting to participate” at the time of alleged discrimination. Must a student or employee have been a student or employee at the time of the complaint or at the time of the discrimination?

Since the regs are retroactive, are recipients required to post the most current training materials used for compliance with the 2020 regulations on their websites, if they have one, in perpetuity? If not, when can it be removed?

What is the definition of “administrative leadership” and who would be included in that? Would that term apply to all supervisors at an institution of higher education?

If there is a university sponsored event that is outside of the U.S. and an incident occurs, would this incident be covered by Title IX?

It seems nonsensical to require the policy updates by August 1 and then all training by then as well on new policy that has just been finalized/published. Some grace period/safe harbor would be much appreciated between effective date of policy and training of all who need to be trained, as has been past practice. Can OCR offer a grace period of some kind for training requirements, especially for ten-month or other limited employees who are not available for training in July or August?