ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

Could you please clarify the timeline and transition from investigation to hearing? It seems there is a ten-day period that starts after compiled evidence is shared, then another ten days for review and response to the draft report, then some number of days for the investigator to complete the report, then ten days to prepare for the hearing. 10/10/10. Is that correct? Is there a graphic that OCR could offer to make this clearer? Also, please clarify if the ten days to prepare for a hearing also applies to K-12, and whether that depends on whether the K-12 offers a formal hearing or administrative decision?

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Is the 10-day period for review of evidence by the parties under Title IX a ten-calendar day or business day provision?

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If I understand correctly, the 2001 Revised Guidance has not been withdrawn.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?

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May there be an inherent conflict where supportive measures must be confidential, but the respondent’s defense is that the complainant’s complaint is false, and has only been made to facilitate access to academic supportive measures? Access to information about the measures might show the timeline of academic distress needed to prove this defense. In the event the respondent’s right to due process conflicts with the confidentiality of supportive measures, what does the OPEN Center advise?

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The 2020 Regulations state: “At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the school with which the formal complaint is filed.”

While I think I understand the intent and motivation behind this section, I would ask that OCR please provide guidance on the following type of case, which happens frequently. A complainant either withdraws from the recipient because of sexual violence and then files a complaint, or files a complaint but then withdraws as a result of the sexual violence or stress of the grievance process. She has been effectively denied access to her education program because of sex discrimination, in a view that I believe would be commonly held. She is neither participating in nor attempting to participate in the education program, though she might return once she heals and knows that her perpetrator is no longer a student (as the result of the grievance process). I believe the regs provide that a recipient could resolve this matter under its conduct code if it chose to, but it is OCR’s position that she is not entitled to a Title IX process and remedies despite the fact that she was deprived of her education access the same as any student who had chosen to remain enrolled, and experienced sexual assault while she was a student? 

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Does OCR have a view on whether the Title IX Coordinator can serve as a non-voting procedural facilitator during the live hearing?

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Please clarify confusion over the definition intended by the regs for sexual assault. 

The regs say: (3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v) 

Looking that up, I find: (v) The term “sexual assault” means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.

Looking that up, sexual assault doesn’t appear to be a UCR offense, though rape, sodomy, sexual assault with an object, etc. are listed.

https://ucr.fbi.gov/recent-program-updates/new-rape-definition-frequently-asked-questions

 However, the Clery Act Handbook uses this definition:

“Any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.” 

So, is that the definition the regs expect recipients to apply? Also, is it OCR’s intent for any or all of the four subparts of the definition in the Clery Act Handbook to apply/be used as policy definitions?

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The regs state:

“The recipient must notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator pursuant to this paragraph.”

This is confusingly written about notice to parents or legal guardians of elementary and secondary school students…is that limited to K-12 programs, or is this a requirement for IHEs as well? The way it’s written could mean that a university is supposed to let every parent/legal guardian in the state know who the TIXC is. Does it apply only to K-12? Is it supposed to mean an IHE only has to notify K-12 parents/legal guardians for things like summer camps or dual credit courses the IHE offers to elementary and secondary students?

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Generic OPEN Center Statement Included with All Questions

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THE DEFINITION OF SEXUAL HARASSMENT UNDER THE TITLE IX RULE PROVIDES CLARITY TO SCHOOLS (10/7/2020)