News & Insight

New Resources and Website Updates from OCR in Biden Administration’s Final Days

During President Biden’s last few weeks in office, the U.S. Department of Education’s Office for
Civil Rights (“OCR”) published a series of new guidance documents and updated its website to align
with the recent court decision vacating the Department’s 2024 Title IX Final Rule.

Last week, OCR made various website updates (see here and here, for example) acknowledging the
January 9, 2025 ruling in State of Tennessee v. Cardona, No. 2:24-cv-0072-DCR-CJS (Jan. 9, 2025)
and making clear that, consistent with the ruling, the 2024 Title IX Regulations are not effective
in any jurisdiction. For an in-depth analysis of the Tennessee decision and what’s next for
educational institutions, check out our recent blog post here.

OCR also released a flurry of other civil rights related resources since early December, including
the resource on retaliation that we discussed in a previous blog post, and the following additional
resources:

1) Fact Sheets Addressing Certain Medical Conditions (December 12, 2024): OCR released four factsheets discussing Section 504 protections for students with specific medical conditions, including inflammatory bowel disease, migraines, narcolepsy, and stuttering. Each fact sheet offers guidance on how to identify qualifying students, outlines ways in which the relevant condition can affect a student’s experience in school, and provides examples of reasonable modifications that may enable a student with the condition to meaningfully access or benefit from the school’s educational opportunities.

2) Individualized Assessments for Students with Disabilities in Postsecondary Education (January 3,2025): In this two-page fact sheet, OCR reiterates the importance of engaging in individualized assessments to determine appropriate accommodations for students with disabilities in the higher education setting. This generally requires engaging in an interactive process in which the institution and student work collaboratively to determine what academic adjustments will effectively address the student’s unique needs. The fact sheet further reminds institutions that:

  • The particular needs of students with the same disability can differ;
  •  A particular academic adjustment cannot be limited only to students with certain
     disabilities;
  • Students with disabilities may need new or novel adjustments that the institution has not
     previously provided; and
  • Institutions must also use individualized assessments when questions arise regarding whether a student who requests or requires new or additional adjustments remains    qualified for the program activity.   
  •    Finally, the fact sheet emphasizes that Section 504 prohibits postsecondary institutions from relying on administrative convenience to offer one-size-fits-all adjustments and that policies, practices, or procedures that operate inflexibility to deny students with disabilities academic adjustments violate Section 504.

3) Resolving a Hostile Environment Under Title VI: Discrimination Based on Race, Color, or National Origin, Including Shared Ancestry and Ethnic Characteristics (January 10, 2025): This ten-page resource supplements OCR’s prior Title VI guidance by discussing factors that institutions should consider when taking action to remediate a hostile environment under Title VI. The resource outlines the relevant standard under which OCR could find a Title VI violation namely: (a) a hostile environment based on race, color, or national origin existed; (b) the institution had actual or constructive notice of the hostile environment; and (c) the institution failed to take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.

The resource offers examples of remedial actions that institutions found in violation of Title VI by OCR have agreed to take, such as reviewing policies and procedures, implementing a plan for educating the campus community about reporting harassment, and administering climate surveys. Finally, the resource summarizes eight recent Title VI resolutions (six with K-12 school districts and two with postsecondary institutions) to illustrate how OCR evaluates evidence, determines the existence of a hostile environment, and identifies effective remedies in the context of a Title VI complaint. While OCR emphasizes that the facts and circumstances of each case are unique, the resolutions serve as a practical guide for institutions seeking to evaluate their own policies and procedures, proactively implement preventative strategies, and ensure that they respond promptly and effectively to allegations of discrimination based on race, color, or national origin.

4) Online or Digital Sexual Harassment Under the 2020 Title IX Regulations: A Resource for Students, Families, and Educators (January 14, 2025): This resource provides guidance on Title IX’s applicability to incidents of sexual harassment occurring in digital or online spaces. The resource clarifies that Title IX’s protection against sexual harassment in educational programs or activities extends to harassment occurring in online spaces where such spaces are operated or controlled by the institution or directly linked to its educational environment (e.g., harassment occurring in school-related, off campus settings such as field trips or athletic events; harassment occurring via school- sponsored electronic devices or networks; or harassment taking place on digital platforms operated by the institution, such as AI technologies).

The resource further clarifies that, while Title IX does not require institutions to affirmatively monitor the online activity of their students, staff or others, it does require that institutions address sexual harassment occurring in their education programs or activities, regardless of the method by which the harassment is carried out and regardless of whether the institution knows the identity of the alleged harasser. Finally, the resource acknowledges that the 2020 Title IX Regulations—and not the recently-vacated 2024 Final Rule— establish the applicable requirements for an institution’s response to alleged sexual harassment under Title IX, which include: (a) offering supportive measures to any student who is reported to have experienced sexual harassment; (b) explaining to the student how they can file a formal complaint; and (c) where a formal complaint is filed, investigating using a grievance process that complies with the 2020 Regulations.

5) Fact Sheet: Ensuring Equal Opportunity Based on Sex in School Athletic Programs in the Context of Name, Image, and Likeness (NIL) Activities (January 16, 2025): This fact sheet addresses educational institutions’ Title IX obligations with regard to NIL compensation for college athletes. The fact sheet affirms OCR’s position that NIL compensation from institutions constitutes “athletic financial assistance,” which is required to be distributed in a nondiscriminatory manner under Title IX. Additionally, according to the fact sheet, while OCR “does not view compensation provided by a third party (rather than a school) to a student-athlete for use of their NIL as constituting athletic financial assistance awarded by the school,” OCR “has long recognized that a school has Title IX obligations when funding from private sources, including private donations and funds raised by booster clubs, creates disparities based on sex in a schools’ athletic program or a program component.” In other words, institutions that distribute NIL compensation in an inequitable manner may be found in violation of Title IX, even where the compensation comes from a third-party funding source.

With President Trump now officially in office, we are likely to see shifts in OCR’s priorities and corresponding policy changes that could impact educational institutions’ civil rights compliance efforts. To help institutions stay informed, HMBR is hosting a new complimentary webinar series, “Insights on Higher Education in 2025,” which kicks off this Thursday, January 23, from 12:00pm– 1:00pm CST. To register, click here.

  Jan 21, 2025  |  By    |   On Education