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 info@atixa.org.
Training Materials (Response 6/8/2020)
If ATIXA provides a link to our library that our clients/members can make accessible to the public, can we implement a registration system to access the link, meaning having members of the public sign up with their contact information in order to gain access?
Inferences (Response 5/27/2020)
The regs state: that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
This appears in a section related to IHEs. Should K12s follow a similar approach with respect to a student who refuses to pose or answer questions (assume no live hearing)?
Read More...Evidence (Response 5/27/2020)
I understand that the regs say that the decision-maker shall not rely on statements from a party or witness who does not participate in the hearing. Does this refer to the original source of the statement or evidence, or the source at the hearing? Put more precisely, if Rob the respondent tells Walter the witness that he raped Veronica, can Walter testify to what Rob told him if Rob does not participate in hearing, but Walter does? And, another variation: if Rob the respondent tells Ivan the investigator that he raped Veronica, can Ivan testify to what Rob told him if Rob does not participate in hearing, but Ivan does (as a witness)?
Read More...Parent/Guardian Rights (Response 5/23/2020)
In the Title IX final rule, Section 106.6(g) clarifies that parents/guardians are permitted to exercise their legal right to act on behalf of their child as “complainant,” “respondent,” etc., including stepping in to file a formal complaint under part 106.
What’s unclear, however, is whether this parent/guardian entitlement now triggers an obligation by the LEA/school to notify a parent/guardian that the school has notice of a report of sexual harassment when the school does not yet know whether the parent/guardian also has notice of the allegation. As we understand it, practices among LEA/schools differ (depending upon state law, LEA policy, and/or local custom/practice) as to whether they are required to make notification to a parent/guardian of an allegation of harassment.
Does this “right” imply an obligation to notify the parents/guardians of the report alleging that their child is the victim of some form of sexual harassment?
Read More...Parents Filing Complaints (Response 5/22/2020)
Please clarify the regs language that parents can file as complainant on behalf of their child? Are they an actual complainant, or a proxy for their child? Does that only apply to minor children? Does it only apply to K-12? If it applies to an IHE, what if the child does not want to participate? Does the parent complainant gain all rights that an actual victim would have?
Read More...
Timeline Clarification (Response 5/22/2020)
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?
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?
10 Day Period for Review of Evidence (Response 5/22/2020)
Is the 10-day period for review of evidence by the parties under Title IX a ten-calendar day or business day provision?
Confidentiality of Supportive Measures and Due Process (Response 5/22/2020)
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?
Formal Complaints (Response 5/22/2020)
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?