On February 4, the U.S. Department of Education re-issued a Dear Colleague Letter to replace the letter issued on January 31, 2025.
Background and Bottom Line
Generally, the letter acknowledges the court decision from January 9, 2025 vacating the 2024 Title IX Final Rule and provides the much-sought-after guidance the schools and institutions of higher education have been seeking about which policies to apply to open cases and to newly reported cases about incidents occurring between August 1, 2024 to January 9, 2025. The guidance says that all open matters and any newly reported matters must use 2020-compliant policies and procedures. This means that among other requirements, for complaints meeting the definition of sexual harassment outlined in the 2020 Final Rule, colleges and universities must hold live hearings with advisor cross-examination. Matters that do not fall under the definition of 2020 sexual harassment should be referred to other policies and procedures as applicable.
The two versions of the letter vary, as discussed further below.
Which Rules Apply and What Do They Cover?
The January 31 letter said that “open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.” The February 4 letter alters that sentence and says instead that “open investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to ensure consistency with the requirements of the 2020 Title IX Rule and the preexisting regulations at 34 C.F.R. 106 et seq.”
The new wording is more precise and may be aimed at providing clarity around addressing sex discrimination that’s prohibited by Title IX but not specifically addressed by the 2020 amendments, such as discrimination on the basis of pregnancy and related conditions, or other sex discrimination that’s unrelated to sexual harassment as defined in 2020. Schools remain obligated to prohibit such discrimination under Title IX and to adopt and publish grievance procedures to address complaints, but the specific reporting and resolution rules set out in 2020 are limited to sexual harassment as defined in those amendments.
Acknowledging the January 20 Executive Order
The January 31 letter called the January 20, 2025 Executive Order “[e]qually fatal to the 2024 Title IX Rule” as the judge’s vacatur order. An Executive Order cannot undo a regulation. The new letter removes that sentence and instead acknowledges the Executive Order and asserts that enforcement will be consistent with the Order.
The Definition of Sex
The Jan 31st letter refers to “sex” as “the objective, immutable characteristic of being born male or female as outlined in the 2020 Rule.” But the 2020 Rule and its preamble contain no such definition. Thus, that language was removed for the February 4 publication. The updated letter quotes from the Executive Order.
Effective Date of Vacatur
The February 4 letter acknowledges that the vacatur order was effective immediately, and also that the Department of Justice is responsible for determining whether to appeal. There is no indication that the U.S. government will appeal.
Our Questions, Answered
These are the questions we asked on January 9, and how they’ve been answered, if at all, by this guidance:
Might the government appeal?
No, that is extremely unlikely.
If not, how soon will OCR expect institutions to unwind their 2024 changes to become compliant once again with the previous regulations?
The guidance provides no date but says “immediately.”
Grand River Solutions can support you in assessing your next steps, updating policies, and providing training.
The January 31 letter is available here.
The February 4 letter is available here.
We compared the letters using Microsoft Word and the resulting document is located here.