ATIXA OPEN Center

ATIXA announces the OCR OPEN Center Response Repository. ATIXA will update responses from the OCR OPEN Center as we receive them. Responses are listed in order of date starting with most recent. You may also search responses by topic areas at the top of the page. The OCR OPEN Center Blog responses are also linked below the Question/Answer section. If you have received a response from the OPEN Center and would like to add it to this repository, please email ryan.mcdavis@atixa.org.

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OCR Issues Q&A On Final Rule (Response 10/29/20)

The Department of Education’s Office for Civil Rights (OCR) has issued a new technical assistance document entitled Questions and Answers Regarding the Department’s Final Title IX Rule to support education institutions with meeting their obligations under the new Rule, which became effective on August 14, 2020.  The content of the document is derived from questions posed to OCR’s Center for Outreach, Prevention, Education, and Nondiscrimination (OPEN Center).

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Question on Appeals (Response 10/29/20)

If an appeal is offered to a respondent for sanctions do we have to offer that same right to the Complainant?

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Offense Definitions (Response 8/13/2020)

This question regards the per se assumption that OCR is making with respect to domestic violence, dating violence, and stalking as forms of sexual harassment. All three of these behaviors, while rare, can have manifestations that are not based on sex. Does OCR still expect all manifestations of these behaviors to be addressed under Title IX even if a particular incident manifestly is not sex-based? Further, is it OCR’s position that grabbing someone on the buttocks, while could be a forcible fondling, is a form of sex discrimination?

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Timing (Response 8/13/2020)

What should recipients do with cases where responsibility has been found already, but the matter is either in the appeals or sanctioning phase and still will be when the regs become effective on August 14th? Are recipients required to roll everything back and hold a 106.45 hearing before they are able to sanction a respondent or can they continue with the current process for cases that have already established a finding?

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How Many Questions? (Response 8/13/2020)

The regs are unclear on how much cross-examination is needed. If an advisor asks a party one question only about their statements, are all statements now admissible, or must the advisor question about each statement for that statement to be admitted?

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Directly Related Evidence (Response 8/13/2020)

How does OCR define “directly related” evidence within the regulations?

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Evidence Question (8/13/2020)

Respondent tells her best friend Callie that she really did sexually assault the complainant, Julie, At the hearing, the decision-maker asks Callie about this. Callie confirms it. The decision-maker asks respondent about it, and respondent refuses to answer. The respondent then refuses to be subject to cross-examination, at all. Do we read page 1182 of the preamble (5/6/20 version, p. 1214 of the 5/19/20) to mean that because the respondent refused to answer the question of the decision-maker, the decision-maker is able to rely on the “confession” to the extent it is relevant, and the decision-maker finds Callie credible? The provision directing the decision-maker not to rely on the confession and not draw an inference solely from Respondent’s silence are no longer applicable, because the decision-maker posed the question?  

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K-12 Hearing (Response 8/13/2020)

If a K12 recipient is required by existing law or policy to provide a hearing, do OCR’s rules in 106.45 around cross-examination and consideration of evidence apply to that hearing?

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Sanctions (Response 8/13/2020)

If the decision-maker makes a finding, can another person or panel make sanctioning decisions, if the sanction will depend in any way on the decision-maker’s assessment of credibility, but the sanctioner was not present at the hearing?

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Appeals Equity (Response 8/13/2020)

The Title IX Coordinator uses their discretion to dismiss a Title IX matter during the investigation stage, when the respondent withdraws from the university, over the protest of the complainant. The complainant then appeals the dismissal. Can the respondent, who is no longer a student, and is not attempting to participate in the educational program, participate equitably in the appeal according to the regs or does their withdrawal terminate their rights under the regulations?

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