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University General Counsel Advising (Response 2/15/21)

Filed Under: 106.45

Do the new Title IX regulations allow universities to use attorneys who advise the University to perform legal sufficiency reviews, and at what points, (a) prior to issuance of the draft investigation report, (b) prior to issuance of the final investigation report, (c) prior to issuing a written decision after adjudication, or (d) prior to issuing the final decision after appeal?



Thank you for your question regarding OCR’s new Title IX Regulations. All references and citations are to the official version of the Regulations published in the Federal Register available is here. A link to the unofficial version of the final Regulations is available here.

Please note that the response provided to you by OCR is not legal advice and does not constitute an OCR determination regarding the compliance or non-compliance with respect to the new Regulations. OCR does not provide advisory opinions, and determinations about a recipient’s (school’s) compliance with civil rights laws like Title IX are made only after OCR has investigated a complaint filed with OCR, in accordance with OCR’s Case Processing Manual.

Regarding your question, nothing in the regulations addresses whether attorneys representing a school may play some role in the investigation or adjudication of sexual harassment allegations. However, the Department notes that Title IX Regulations obligate the Title IX Coordinator, an investigator, and a decision-maker (who must be a different person from the investigator) to be free from bias and interest, and the regulations require that the decision-maker have an independent obligation to objectively evaluate all relevant evidence. See 34 C.F.R. § 106.45(b)(7), § 106.45(b)(1)(ii).



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