ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

The regs state that the recipient must offer appeal rights that are the same as the recipient offers in all other comparable proceedings. So, if a unionized campus offers three levels of appeal related to discrimination complaints for employees who are unionized under its CBA, would it then have to offer the same three levels of appeal in its Title IX-related resolutions, on the same exact bases/grounds for appeal as are offered in the CBA? What proceedings does OCR consider comparable? Would it be limited to other employee cases? Or does comparable not differentiate between types of populations (students, employees, faculty)?

Two Similar Questions were Asked:

Q1: The regs are not retroactive. If a student reports in 2026 a pattern of sexual harassment by a professor that is continuous from 2021 to 2026, what regulations (2020, 2024, some combination?) does OCR expect the recipient to apply, and why?

Q2: The regs are not retroactive. If a student reports on August 10, 2024, that they have experienced stalking behavior on July 28, 2024, and again on August 2, 2024, what regulations (2020, 2024) does OCR expect the recipient to apply, and why? Assume these are the only incidents, thus the course of conduct spans both regulatory schemes.

The regs are not retroactive. If a student reports an incident that occurred on April 20, 2024, in 2027, is it correct that OCR will expect the 2027 resolution to take place in alignment with the 2020 regulation?

The regs are not retroactive, thus incidents occurring before August 1, 2024, must be resolved using the 2020 Rule. What does this mean with respect to incidents that occurred before August 14, 2020? Under what Rule will OCR enforce with respect to those incidents?

The regs state: (3) A recipient must notify the complainant that a dismissal may be appealed and provide the complainant with an opportunity to appeal the dismissal of a complaint on the bases set out in § 106.46(i)(1). Does this provision mean that only the bases set out in § 106.46(i)(1) may be considered, or may a recipient add additional bases if it chooses to?

Regarding the definitions of sexual assault, domestic violence, dating violence, and stalking under Title IX of the Education Amendments of 1972 (Title IX), can postsecondary institutions use the definitions of these terms in the Clery Act regulations to satisfy their obligations under the 2024 Title IX regulations?

Can a school-sponsored, student-run club remove a student accused of sexual assault from the club before the recipient makes a determination of responsibility under 34 C.F.R. § 106.45?

ATIXA has a number of members who wish to outsource their Title IX compliance programs, for a number of reasons. They want to know whether there anything in the regulations that would prohibit this practice.

Specifically, they note that the regulations require the Title IX Coordinator to be an “employee” and that an outsourced coordinator would not technically be employed, but would perform the same functions as an employee would. Would this be permissible? If so, is the selection of an external coordinator limited only to interim arrangements, or could a long-term outsource be possible?

If the answer is that the Coordinator must be an actual employee, would it work to give the coordinator title to an employee, but to delegate or create co-coordinator roles that are satisfied by the external consultant?

Read the letter here:

A Back-to-School Message for America’s Transgender Students.