ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

The Title IX regulations make the release of a respondent’s identity confidential unless the FERPA exceptions apply. FERPA permits but does not require the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses. Crimes of violence and non-forcible sex offenses do not include all forms of sexual harassment as defined in 34 C.F.R § 106.30(a). Does that mean that recipients cannot reveal the identity of a respondent found responsible for sexual harassment, including in response to a reference check, because it would be retaliatory to release this confidential information, assuming there is no state law requiring this information to be revealed?

What happens to records following the required seven-year retention period?

Is a recipient permitted to conduct teacher or faculty discipline processes in which sanctions are reviewed by a separate committee, and which can lead to tenure revocation proceedings, outside of the requirements of 34 C.F.R. §106.45, or are recipients required to combine the 6 determination regarding responsibility and sanctions aspects of a Title IX grievance process into a single process subject to the requirements of 34 C.F.R. § 106.45?

Do the requirements in the Title IX regulations apply to allegations between employees of a recipient?

Is a recipient required to notify a parent or guardian of reported sexual harassment that affects that parent or guardian’s student?

Is a recipient required to investigate a formal complaint alleging that sexual harassment occurred off campus or against a student engaged in a study abroad program, or must such complaints be dismissed?

May a recipient use the procedures outlined in 34 C.F.R. § 106.45 of the Title IX regulations even in cases where an incident of sexual harassment occurs outside of the recipient’s education program or activity and thus does not trigger the recipient’s duties under 34 C.F.R. § 106.44(a)?

Under the Title IX regulations, will the Department apply the deliberate indifference standard to a complaint regarding a recipient’s response to sexual harassment? For example, will the Department apply the deliberate indifference standard to assess a respondent’s allegations that the recipient’s grievance process was inequitable or that the supportive measures implemented by the recipient were unreasonably burdensome?

If a formal complaint alleges attempted sexual assault, would that be covered under the definition of sexual harassment in 34 C.F.R. § 106.30(a), or would a recipient need to dismiss that complaint for Title IX purposes?

How should recipients reconcile the requirements in the Title IX regulations with different requirements in guidance documents previously issued by OCR?