2001 Revised Guidance Application (Response 5/22/2020)
If I understand correctly, the 2001 Revised Guidance has not been withdrawn. Thus, it has the force and effect of law, as do the 2020 regulations, once implemented. How should recipients reconcile the validity of two regulatory documents under Title IX that do not agree with each other?
In the preamble to the Rule at page 1871, 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 on page 1871 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regulations differ from any of the Department’s guidance documents (whether such documents remain in effect or are withdrawn), these final regulations, when they become effective, and not the Department’s guidance documents, are controlling.”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 on page 17 of the preamble to the Title IX Rule that “guidance is not legally enforceable,” and cites to Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 96-98 (2015) as supporting authority for that proposition. Additionally, on page 154, 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.”