Applicability of Prior OCR Guidance

In the Preamble to the Title IX regulations at 30535, the Department explains: “On September 22, 2017, the Department expressly stated that its 2017 Q&A along with the 2001 Guidance ‘provide information about how OCR will assess a school’s compliance with Title IX.’” The Department further states at 30535 of the Preamble: “To the extent that these final regulations differ from any of the Department’s guidance documents (whether such documents remain in effect or are withdrawn), these final regulations, when they become effective, and not the Department’s guidance documents, are controlling.” The Department also unequivocally states at 30029 of the Preamble to the regulations that “guidance is not legally enforceable,” and cites to Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 96-98 (2015), OCR-000125 2 for that proposition.

Additionally, at 30068, the Department acknowledges that guidance documents do not have the force and effect of law and states: “Because guidance documents do not have the force and effect of law, the Department’s Title IX guidance could not impose legally binding obligations on recipients.” The new Title IX regulations became effective on August 14, 2020, and the Department will not apply or enforce the new regulations retroactively. As to alleged sexual harassment occurring prior to the effective date of the new regulations, recipients may find it helpful to refer to the now-rescinded 2001 Revised Sexual Harassment Guidance and the 2017 Q&A on Campus Sexual Misconduct, which remain accessible on the Department’s website.