ATIXA's OPEN Center Responses

ATIXA has a few members who have raised an issue that I don’t really know the answer to, and I am hoping that you can ask Program Legal to provide us with some guidance that I can share with members broadly on the intersection of Title IX pregnancy protections and international students whose visas may be in jeopardy if they have to take a reduced course-load as a result of pregnancy-related complications. I think the field is caught between competing sets of regulations. Title IX requires that we try to accommodate pregnant students, but when they are international students, there is no pregnancy exception with respect to their F-1 status. If a recipient fails to accommodate a pregnant student under Title IX with a leave of absence because that student is international, does that run afoul of Title IX? Is there some workaround that means that pregnant international students who cannot maintain a full course load don’t have to leave the country for five months? Please provide any advice you can.

In the July 2022 NPRM, the Department provided the example of a student who reports that his peers repeatedly denigrated him as “girly” over a period of weeks. 87 FR 41417. In this example, if one peer made a one-off remark calling the student “girly,” that alone may not be severe or pervasive enough to create a hostile environment, but if multiple peers repeatedly call the student “girly,” then that same treatment may create a hostile environment for that student.

Similarly, if one student at a postsecondary institution made a derogatory comment to a pregnant student based on her pregnancy, that alone may not be sufficient to create a hostile environment, but if multiple people make similar comments to the same student based on pregnancy, that may create a hostile environment for the student. The Department notes that, when the elements of sex-based hostile environment are satisfied for an affected student, a recipient has an obligation to address that hostile environment, even if a particular respondent’s conduct does not justify discipline.

For example, in response to a hostile environment created by a series of incidents by different respondents, a recipient may offer supportive measures to the affected student or provide training for the broader school community.” Understood, but in the process of investigating this, to determine if it is severe or pervasive, who is the respondent? Is this addressed the same way other investigations would be under the regs, since we still need to determine if a hostile environment has been c

Partial removals – is there a definition of this term that OCR can offer?

Does peer retaliation apply only to students? Who are “peers” within the regs?

Can Program Legal provide any guidance for the distinction between “unwelcome” and “subjectively offensive” as it relates to the analysis for a Hostile Environment? It seems like the preamble combines these elements, functionally, into the same analysis…is that correct?

If a recipient takes off-campus jurisdiction for physical assaults involving students, must a recipient take off-campus jurisdiction for sexual assaults involving all populations (including employees) or just students?

In the definition of a complainant, OCR defines it as a “student or employee” OR a “person who is not a student or employee but was participating or attempting to participate” at the time of alleged discrimination. Must a student or employee have been a student or employee at the time of the complaint or at the time of the discrimination?

Since the regs are retroactive, are recipients required to post the most current training materials used for compliance with the 2020 regulations on their websites, if they have one, in perpetuity? If not, when can it be removed?

What is the definition of “administrative leadership” and who would be included in that? Would that term apply to all supervisors at an institution of higher education?

If there is a university sponsored event that is outside of the U.S. and an incident occurs, would this incident be covered by Title IX?