Are Title IX Regulations Retroactive | KingSpry

Do the Title IX Regulations Apply Retroactively?

Posted on March 24th, 2022
by Dr. Kathleen Conn

Hmmmm. Well, the Preamble to the Final Rule says “no;” the 2020 Title IX Regulations are not retroactive for sexual harassment that occurred before the August 14, 2020 effective date of those Regulations. Department of Education (DOE) Q & A documents promulgated on September 4, 2020 and July 20, 2021 confirmed that the 2020 Regulations are not retroactive. But in October 2020, the federal District Court for the Northern District of New York said they are! 

The question arises frequently, especially in postsecondary institutions, where the alleged sexual harassment may have occurred months before a complaint was reported to the Title IX Coordinator.

After receiving the complaint, the Title IX Coordinator may have started the process of advising the accused party of the charges, advising both parties that they may have advisors and identify witnesses. However, the actual Title IX investigation may drag on for months, especially if semester breaks and student travel home make contacting witnesses difficult. This would all be done according to the postsecondary institution’s policy adopted prior to August 14, 2020.

However, final resolution of the complaint and the possible appeal to the decision regarding that pre-August 14 sexual misconduct may drag on until after August 14. If the 2020 Title IX Regulations are not retroactive, the determination of the appeal, whether the appeal would reverse the earlier outcome, would occur under the institute’s pre-August 14, 2020 Title IX policy. 

Meanwhile, for complaints of sexual harassment that occurred on August 14, 2020 or after, the postsecondary institution would be required to begin the process defined in the 2020 Title IX Regulations. The institution, at that point, may have to be simultaneously conducting two distinctly different resolution processes for complaints of sexual harassment, the latter of which gives more due process protections for the accused harasser, including a presumption of innocence and a live hearing.

This question of retroactivity recently came to a head at Rensselaer Polytechnic Institute (RPI) in New York State.

Two RPI students had a consensual sexual relationship for several months until John Doe videoed his sex partner Jane Roe getting dressed in his dorm room. Roe and Doe had a falling out over the video, and Roe filed a complaint of sexual assault in January 2020. However, Doe filed a counter-complaint against Roe in June 2020, alleging that Roe was the aggressor while he was drunk, and caused him such psychological harm that he had to take a medical leave from school.

Because the complained-of sexual assault occurred before August 14, 2020, RPI applied the institution’s existing 2018 Title IX policy, found Doe guilty under that policy, and dismissed his claim against Roe. Doe appealed the institution’s decision on August 11, 2020. On August 14, RPI implemented its newly adopted Title IX policy to comply with the new 2020 Title IX Regulations but insisted it would continue to apply its 2018 policy in Doe’s appeal because DOE stated the new Regulations were not retroactive. Using its 2018 policy, RPI denied Doe’s appeal on August 25, 2020.

Doe filed a temporary restraining order (TRO) in the Northern New York District Court on September 28, 2020, alleging that RPI’s insistence on using the 2018 policy amounted to sex discrimination under Title IX. After the parties’ argument in October 16, the court agreed with Doe’s request for the TRO and granted a preliminary injunction to prevent RPI’s use of the 2018 policy to decide his appeal. The court noted that dismissing Doe’s claim while allowing Roe’s allegations to proceed was a selective application of the 2018 policy that discriminated against Doe on the basis of sex.

The court stated that, “Such disregard for the inevitable administrative headaches of a multi-procedural approach certainly qualifies as an irregular adjudicative process.” The court continued that “a school’s conscious and voluntary choice to afford the plaintiff [Doe], over his objection, a lesser standard of due process protections when the school has in place a process which affords greater protections, qualifies as an adverse action.” The court also dismissed OCR’s statement on retroactivity as “not the kind of [agency] ‘authoritative statement’” worthy of deference. Unfortunately, the ultimate result of Doe’s appeal is not reported in court records.

So What Does This Mean for Your College or University?

While this decision is a lower court decision with limited jurisdictional authority, the court’s analysis has many postsecondary institutions carefully considering the issue because of the reluctance of many students to report sexual harassment in a timely manner. 

If the 2020 Title IX Regulations cannot be used in situations like Doe’s, institutions would have to maintain two parallel Title IX adjudicative processes for all complaints of sexual harassment reported before August 14, 2020. 

However, since no pre-2020 Title IX policies specified a statute of limitations for reporting, no one could say how long the parallel processes might persist. Neither the statement in the Preamble to the 2020 Title IX Regulations regarding retroactivity nor the DOE Q&As have the force of law, and 20 U.S.C. § 1681 et seq., the law itself, does not mention retroactivity. Postsecondary institutions faced with sexual harassment complaints that would require resolution using multiple policy regimes should consider their options carefully. 

If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.

This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.