In 2020, the Trump administration’s Department of Education (“the Department”) finalized a harmful Title IX rule (“2020 Rule”) that has significantly weakened protections against sexual harassment, including sexual assault, in schools. A lawsuit by the National Women’s Law Center on behalf of student survivors and victim advocates succeeded in striking a portion of the 2020 Rule, but the rest remains in place. In July 2022, the Biden administration proposed a new Title IX rule regarding sex-based harassment, LGBTQI+ students’ rights, and the rights of pregnant and parenting students, but the final version of this rule has yet to be released.
This document suggests ways for schools to continue supporting sexual harassment victims while complying with the 2020 Rule, including practices suggested by the Department’s own documents, like its July 2021 Q&A. For example, the 2020 Rule does not apply to incidents that allegedly occurred before August 14, 2020. In such cases, schools must follow the Title IX requirements that were in place at the time of the alleged incident, even if a complaint was filed after August 14, 2020. In addition, the 2020 Rule does not apply to schools’ enforcement of other provisions of their codes of conduct, such as a non-Title IX policy prohibiting conduct that falls outside of the 2020 Rule’s definition of “sexual harassment.” In such cases, schools can adopt a “non-Title IX sexual harassment” policy that is consistent with the Department’s 2001, 2011, and 2014 Title IX guidances and that does not impose the survivor-hostile procedures required by the 2020 Rule.