Filed Under: Final Rule
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.
Program Legal Answered Together:
As explained in the preamble to the 2024 Title IX regulations, the 2024 Title IX regulations take effect on August 1, 2024, and apply only to sex discrimination that allegedly occurs on or after August 1, 2024, regardless of when the alleged sex discrimination is reported. As with the 2020 Title IX regulations, the 2024 Title IX regulations do not have retroactive effect because federal agencies authorized by statute to promulgate regulations may only create regulations with retroactive effect when the authorizing statute has expressly granted such authority. Title IX contains no such express grant of authority. See 89 FR 33841.
As such, there may be instances, such as when a pattern of sex-based harassment spans the time period prior to and after August 1, 2024, in which OCR will evaluate the recipient’s compliance against both the 2020 Title IX regulations and the 2024 Title IX regulations. Any resolution agreements would require the recipient to come into compliance with the 2024 Title IX regulations.