Almost two years have passed since the United States Department of Education’s Office for Civil Rights (“OCR”) issued its April 29, 2014 guidance entitled “Questions and Answers on Title IX and Sexual Violence” (“Q&A”).  The Q&A was intended to help colleges understand their Title IX obligations in the aftermath of the OCR’s April 2011 Title IX guidance (generally referred to as the “Dear Colleague Letter”).  The 46-page Q&A document caused many higher education institutions to reconsider their Title IX policies and procedures, and in that process, colleges found that they still had many questions about how best to proceed under the new administrative guidance.

Now the judicial system is beginning to provide some answers to those questions.  This week, cases from Virginia and Colorado provide examples of how the court system is beginning to resolve the ambiguities associated with Title IX guidance.

In a Virginia case, the United States Court of Appeals for the Fourth Circuit upheld OCR’s determination in the Q&A that Title IX applies to claims of discrimination by transgender students.  On April 19, the Fourth Circuit concluded that the Title IX regulations were ambiguous and that the OCR’s determination was entitled to judicial deference.  Since the Fourth Circuit covers the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia, this decision is now the controlling precedent in those five states.

Also on April 19, a male student sued Colorado State University and various university and Department of Education officials.  The suit alleges, among other things, that OCR violated the student’s due process rights by adopting its 2011 Title IX guidance in lieu of promulgating regulations in accordance with the Administrative Procedures Act.

In the coming months, higher education officials and others interested in Title IX can anticipate more litigation over the validity OCR’s guidance documents and the effect of that guidance on college’s duties under Title IX.  As courts wrestle with the meaning of Title IX, both judicial decisions and the OCR’s reaction to them must be monitored to assure Title IX compliance and to minimize the risk of litigation from students adversely impacted by Title IX hearings.

As colleges’ obligations become clearer, campus policies and procedures must be modified to reflect the changing understanding of Title IX.