Education Department releases guidance for DeVos-era Title IX rule

Education Department officials on Tuesday unveiled new guidance to help schools understand their obligations under the Betsy DeVos-era Title IX rule while it undergoes a comprehensive review.

The former secretary of Education’s rule will stay in effect during the review period. The 67-page question-and-answer document includes details on how sexual harassment is defined, how a school can obtain notice of sexual harassment, how a school should respond to allegations of sexual harassment and how a school must process formal complaints of sexual harassment, including live hearings and cross-examination.

The guidance follows a five-day virtual hearing held last month on Title IX, which mandates how colleges and K-12 schools must respond to reports of sexual misconduct.

More than 280 live comments were received from students, teachers, professors, school administrators and more, in addition to written comments, according to the department. Feedback from the hearing will be used to supplement the more than 124,000 written comments the department’s Office for Civil Rights received during former Education Secretary Betsy DeVos' rulemaking process.

Some key answers: The department emphasized in its document that the “2020 amendments set out the minimum steps that a school must take in response to notice of alleged sexual harassment.”

The document also says that schools can respond to misconduct that does not meet the definition of sexual harassment in the rule because“Title IX is not the exclusive remedy for sexual misconduct or traumatic events that affect students.” OCR encouraged schools to develop and enforce codes of conduct to address misconduct not covered by the rule but also said the agency does not enforce school codes of conduct.

Victims’ advocacy groups had pushed back against the definition of harassment in the DeVos rule because of the requirement that the harassment must be “severe, pervasive and objectively offensive.” They've argued that it denies a student equal access to school. The definition, the groups said, would deter students from reporting harassment early on. OCR’s document outlines that a student does not need to have “already suffered loss of education before being able to report sexual harassment.”

Postsecondary institutions are also required to have live hearings and schools may adopt “decorum” policies for their cross examinations. “A school also may require a party to use a different advisor if the party’s advisor refuses to comply with the school’s rules of decorum,” the document said.

Key context: The Title IX final rule is one of the key legacies from DeVos' tenure. She said the rule officially codifies protections to hold schools accountable by ensuring sexual assault survivors aren’t brushed aside and no accused student’s guilt is predetermined.

But the rule was met by intense pushback from victims’ advocacy groups that have said it weakens protections for survivors.

President Joe Biden, on the campaign trail, vowed to end DeVos’ rule. The Title IX review follows through on Biden’s March executive order that directed Secretary of Education Miguel Cardona to consider rescinding the 2020 Title IX rule after launching a comprehensive review.

Once the review is complete, the department has said it anticipates launching a notice of proposed rulemaking.