[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Proposed Rules]
[Pages 41390-41579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13734]
[[Page 41389]]
Vol. 87
Tuesday,
No. 132
July 12, 2022
Part II
Department of Education
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34 CFR Part 106
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance; Proposed Rule
Federal Register / Vol. 87 , No. 132 / Tuesday, July 12, 2022 /
Proposed Rules
[[Page 41390]]
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DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2021-OCR-0166]
RIN 1870-AA16
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Education (Department) proposes to
amend the regulations implementing Title IX of the Education Amendments
of 1972 (Title IX). The purpose of the proposed regulations is to
better align the Title IX regulatory requirements with Title IX's
nondiscrimination mandate, and to clarify the scope and application of
Title IX and the obligation of all schools, including elementary
schools, secondary schools, postsecondary institutions, and other
recipients that receive Federal financial assistance from the
Department (referred to below as recipients or schools) to provide an
educational environment free from discrimination on the basis of sex,
including through responding to incidents of sex discrimination. The
Department recognizes that schools vary in size, student populations,
and administrative structure. The proposed regulations would enable all
schools to meet their obligations to comply fully with Title IX while
providing them appropriate discretion and flexibility to account for
these variations.
DATES: Comments must be received on or before September 12, 2022.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at http://www.regulations.gov. However, if you require an
accommodation or cannot otherwise submit your comments via http://www.regulations.gov, please contact the program contact person listed
under FOR FURTHER INFORMATION CONTACT. The Department will not accept
comments by fax or by email, or comments submitted after the comment
period closes. To ensure that the Department does not receive duplicate
copies, please submit your comments only once. Additionally, please
include the Docket ID at the top of your comments.
The Department strongly encourages you to submit any comments or
attachments in Microsoft Word format. If you must submit a comment in
Adobe Portable Document Format (PDF), the Department strongly
encourages you to convert the PDF to ``print-to-PDF'' format, or to use
some other commonly used searchable text format. Please do not submit
the PDF in a scanned format. Using a print-to-PDF format allows the
Department to electronically search and copy certain portions of your
submissions to assist in the rulemaking process.
Federal eRulemaking Portal: Please go to http://www.regulations.gov to submit your comments electronically. Information
on using http://www.regulations.gov, including instructions for finding
a rule on the site and submitting comments, is available on the site
under ``FAQ.''
Note: The Department's policy is to generally make comments
received from members of the public available for public viewing on
the Federal eRulemaking Portal at http://www.regulations.gov.
Therefore, commenters should include in their comments only
information about themselves that they wish to make publicly
available. Commenters should not include in their comments any
information that identifies other individuals or that permits
readers to identify other individuals. If, for example, your comment
describes an experience of someone other than yourself, please do
not identify that individual or include information that would allow
readers to identify that individual. The Department will not make
comments that contain personally identifiable information (PII)
about someone other than the commenter publicly available on http://www.regulations.gov for privacy reasons. This may include comments
where the commenter refers to a third-party individual without using
their name if the Department determines that the comment provides
enough detail that could allow one or more readers to link the
information to the third party. If your comment refers to a third-
party individual, to help ensure that your comment is posted, please
consider submitting your comment anonymously to reduce the chance
that information in your comment about a third party could be linked
to the third party. The Department will also not make comments that
contain threats of harm to another person or to oneself available on
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of
Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202.
Telephone: 202-245-7705. You may also email your questions to
[email protected], but as described above, comments must be submitted via
the Federal eRulemaking Portal at http://www.regulations.gov.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action
The Department's review of the current regulations and of
information received during and pursuant to a week-long public hearing
as well as stakeholder listening sessions and meetings suggest that the
current regulations do not best fulfill the requirement of Title IX of
the Education Amendments of 1972 (Title IX) that schools and
institutions that receive Federal financial assistance eliminate
discrimination on the basis of sex in their education programs or
activities. The Department therefore proposes that the current
regulations should be amended to provide greater clarity regarding the
scope of sex discrimination, including recipients' obligations not to
discriminate based on sex stereotypes, sex characteristics, pregnancy
or related conditions, sexual orientation, and gender identity.
Further, the Department proposes that the current regulations could
better account for the variety of education programs or activities
covered by Title IX, which include recipients' education programs or
activities serving students in elementary schools, secondary schools,
and postsecondary institutions.
The Department makes these proposals based on an extensive review
of its regulations implementing Title IX, as well as the live and
written comments received during a nationwide virtual public hearing on
Title IX held in June 2021. In addition, in 2021, the Office for Civil
Rights held numerous listening sessions with a wide array of
stakeholders on various issues related to Title IX and considered input
from stakeholders during meetings held in 2022 under Executive Order
12866, after the NPRM was submitted to OMB. Executive Order on
Regulatory Planning and Review, E.O. 12866, 58 FR 51735 (Oct. 4, 1993),
https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf. To address these concerns, the Department proposes amending the
Title IX regulations to:
Require recipients to adopt grievance procedures that
provide for the prompt and equitable resolution of complaints of sex
discrimination and take other necessary steps to provide an educational
environment free from sex discrimination; \1\
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\1\ Throughout this preamble, the term ``sex discrimination''
means ``discrimination on the basis of sex'' as that language is
used in the statutory text of Title IX.
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Clarify the Department's view of the scope of Title IX's
prohibition on sex discrimination, including related to a
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hostile environment under the recipient's education program or
activity, as well as discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity; and
Clarify a recipient's obligations to students and
employees who are pregnant or experiencing pregnancy-related
conditions.
Summary of the Major Provisions of This Regulatory Action
With regard to sex-based harassment (as defined in proposed Sec.
106.2), the proposed regulations would:
Define sex-based harassment to include but not be limited
to sexual harassment;
Provide and clarify, as appropriate, definitions of
various terms related to a recipient's obligations to address sex
discrimination, including sex-based harassment;
Clarify how a recipient is required to take action to end
any sex discrimination that has occurred in its education program or
activity, prevent its recurrence, and remedy its effects; and
Clarify a recipient's obligations related to the grievance
procedures and other necessary steps when it receives a complaint of
sex discrimination.
With regard to discrimination against individuals who are pregnant
or parenting, the proposed regulations would:
Define the term ``pregnancy or related conditions'' and
the term ``parental status,'' and prohibit discrimination against
students and applicants for admission or employment on the basis of
current, potential, or past pregnancy or related conditions; and
Clarify a recipient's obligations to students and
employees who are pregnant or experiencing related conditions.
In addition, the proposed regulations would:
Articulate the Department's understanding that sex
discrimination includes discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity;
Clarify and streamline administrative requirements with
respect to designating a Title IX Coordinator, disseminating a
nondiscrimination notice, adopting grievance procedures, and
recordkeeping;
Specify that a recipient must train a range of relevant
persons on the recipient's obligations under Title IX;
Clarify that, unless otherwise provided by Title IX or the
regulations, a recipient must not carry out any otherwise permissible
different treatment or separation on the basis of sex in a way that
would cause more than de minimis harm, including by adopting a policy
or engaging in a practice that prevents a person from participating in
an education program or activity consistent with their gender identity;
and
Clarify a recipient's obligation to address retaliation.
Costs and Benefits
As further detailed in the Regulatory Impact Analysis, the
Department estimates that the total monetary cost savings to recipients
of the proposed regulations over ten years would be in the range of
$9.8 million to $28.2 million. Although the Department cannot quantify,
in monetary terms, the benefits of the proposed regulations to those
who have been subjected to sex discrimination, the Department
recognizes that sex discrimination, including sex-based harassment, can
have profound and long-lasting economic costs for students, employees,
and other members of a recipient's surrounding community. See, e.g.,
Centers for Disease Control and Prevention, Fast Facts: Preventing
Sexual Violence, https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html (last visited June 16, 2022) (describing the economic
impact of sexual violence involving physical contact on male and female
victims within their lifetimes); Cora Peterson et al., Lifetime
Economic Burden of Intimate Partner Violence Among U.S. Adults, 55 a.m.
J. Preventative Med. 433 (2018) (estimating the economic impact of
intimate partner violence on male and female victims within their
lifetimes). The Department now believes that these proposed regulations
more effectively fulfill Title IX's guarantee that a recipient's
education program or activity is free from sex discrimination. As
proposed, the Department's preliminary view is that these amendments
would lower the costs associated with sex discrimination, thereby
producing a demonstrable benefit for students, employees, and others
participating in a recipient's education program or activity. In the
Regulatory Impact Analysis, the Department estimates the likely
monetary costs of this regulatory action for recipients. The
clarification of grievance procedures required for all forms of sex
discrimination and adoption of new reporting and notification framework
for employees will carry some costs. The Department notes that although
it cannot fully quantify the economic impact of the proposed
regulations, the Department believes that these benefits are
substantial and would significantly outweigh the estimated costs of the
proposed regulations.
The Department also acknowledges that the proposed regulations
deviate from some past agency statements on Title IX's coverage of
discrimination based on sexual orientation and gender identity. As
explained in the Regulatory Impact Analysis, the Department believes
that any costs associated with the shift away from its most recent
prior interpretation would be minimal. For example, the proposed
requirement to permit students to participate in a recipient's
education program or activity consistent with their gender identity may
require updating of policies or training materials, but would not
require significant expenditures, such as construction of new
facilities. The Department proposes that the benefits associated with
this change--increased protection of students from sex discrimination
and better alignment of the regulations with Title IX's
nondiscrimination mandate--far outweigh any costs.
Invitation to Comment: The Department invites you to submit
comments regarding the proposed regulations. To ensure that your
comments have the maximum effect on developing the final regulations,
you should identify clearly the specific section or sections of the
proposed regulations that each of your comments addresses and arrange
your comments in the same order as the proposed regulations.
The Department invites you to assist us in complying with the
specific requirements of Executive Orders 12866 and 13563 (explained
further below) and their overall goal of reducing the regulatory burden
that might result from the proposed regulations. Please let the
Department know of any further ways that it may reduce potential costs
or increase potential benefits, while preserving the effective and
efficient administration of the Department's programs and activities.
The Department also welcomes comments on any alternative approaches to
the subjects addressed by the proposed regulations.
During and after the comment period, you may inspect public
comments about the proposed regulations by accessing Regulations.gov.
You may also inspect the comments in person. Please contact the person
listed under FOR FURTHER INFORMATION CONTACT to make
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arrangements to inspect the comments in person.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record: Upon request, the Department will provide an
appropriate accommodation or auxiliary aid to an individual with a
disability who needs assistance to review the comments or other
documents in the public rulemaking record for the proposed regulations.
To schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Table of Contents
Background
History of Title IX's Nondiscrimination Mandate and Related
Regulations
The Department's Review of the Title IX Regulations
Significant Proposed Regulations
I. Provisions of General Applicability
II. Recipient's Obligation to Operate Its Education Program or
Activity Free from Sex Discrimination
III. Pregnancy and Parental Status
IV. Title IX's Coverage of All Forms of Sex Discrimination
V. Retaliation
VI. Outdated Regulatory Provisions
VII. Directed Questions
Regulatory Impact Analysis
Background
The mission of the Department's Office for Civil Rights (OCR) is to
ensure equal access to education and to promote educational excellence
through vigorous enforcement of civil rights in our nation's schools.
One of the Federal civil rights laws that OCR enforces is Title IX,
which prohibits discrimination on the basis of sex under education
programs or activities that receive Federal financial assistance. 20
U.S.C. 1681-1688. Unfortunately, sex discrimination--sometimes
overlapping with other forms of discrimination, such as race
discrimination and disability discrimination--remains a serious
problem, keeping affected students from benefiting fully from their
school's education programs and activities.
In March 2021, President Joseph R. Biden, Jr. issued the Executive
Order on Guaranteeing an Educational Environment Free from
Discrimination on the Basis of Sex, Including Sexual Orientation or
Gender Identity, and directed the Secretary of Education, in
consultation with the Attorney General, to review all existing
regulations, orders, guidance documents, policies and any other similar
agency actions for consistency with Title IX and other governing laws.
The goal of the Executive Order was to ensure ``that all students [are]
guaranteed an educational environment free from discrimination on the
basis of sex, including discrimination in the form of sexual
harassment, which encompasses sexual violence, and including
discrimination on the basis of sexual orientation or gender identity.''
Executive Order on Guaranteeing an Educational Environment Free from
Discrimination on the Basis of Sex, Including Sexual Orientation or
Gender Identity, E.O. 14021, 86 FR 13803 (Mar. 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf.
Also, as set out in the Executive Order on Preventing and Combating
Discrimination on the Basis of Gender Identity or Sexual Orientation,
issued in January 2021, this Administration's policy is ``to prevent
and combat discrimination on the basis of gender identity or sexual
orientation, and to fully enforce Title VII [of the Civil Rights Act of
1964] and other laws that prohibit discrimination on the basis of
gender identity or sexual orientation.'' Executive Order on Preventing
and Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation, E.O. 13988, 86 FR 7023 (Jan. 25, 2021), https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf. That
Executive Order further noted that under the reasoning of Bostock v.
Clayton County, 140 S. Ct. 1731 (2020), ``[l]aws that prohibit sex
discrimination--including Title IX of the Education Amendments Act of
1972, as amended (20 U.S.C. 1681 et seq.) . . . along with their
respective implementing regulations--prohibit discrimination on the
basis of gender identity or sexual orientation, so long as the laws do
not contain sufficient indications to the contrary.'' Id. Like
Executive Order 14021, Executive Order 13988 directed the Secretary of
Education, in consultation with the Attorney General, to ``review all
existing orders, regulations, guidance documents, policies, programs,
or other agency actions'' promulgated under any statute or regulation
that prohibits sex discrimination for their consistency with the stated
policy. Id.
As these Executive Orders directed, the Department conducted an
extensive review of its Title IX regulations and policy documents for
consistency with Title IX's statutory prohibition on sex discrimination
in federally funded education programs or activities. This review
included careful consideration of the comments and feedback received
during a nationwide virtual public hearing on Title IX that OCR held in
June 2021, OCR's numerous listening sessions in 2021 with a wide array
of individuals and organizations on various Title IX issues, and
meetings with stakeholders held in 2022 under Executive Order 12866,
after the NPRM was submitted to the Office of Management and Budget
(OMB). Office of Management and Budget, Office of Information and
Regulatory Affairs, Reginfo.gov, http://reginfo.gov/public (last
visited June 2, 2022). Based on that review and input, the Department
proposes that the current regulations should be amended to support full
implementation of Title IX's prohibition on sex discrimination under a
recipient's education program or activity.
In its review, the Department heard two overarching concerns from
students, parents, recipients, advocates, and other concerned
stakeholders, namely that: (1) there is a need for greater clarity on
how to ensure that complaints of sex-based harassment are resolved in a
prompt and equitable manner; and (2) the current regulations do not
adequately clarify or specify the scope of sex discrimination
prohibited by Title IX, including discrimination based on sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, or gender identity. The Department has determined
that more clarity and greater specificity would better equip recipients
of Federal funding \2\ to create and maintain school environments free
from sex discrimination. This, in turn, will help recipients ensure
that all persons have equal access to educational opportunities in
accordance with Title IX's nondiscrimination mandate.
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\2\ The text of Title IX states that the statute applies to
``any education program or activity receiving Federal financial
assistance.'' 20 U.S.C. 1681(a). The definition of the term
``Federal financial assistance'' under the Title IX regulations is
not limited to monetary assistance, but encompasses various types of
in-kind assistance, such as a grant or loan of real or personal
property, or provision of the services of Federal personnel. See 34
CFR 106.2(g)(2) and (3). Throughout this preamble, terms such as
``Federal funding,'' ``Federal funds,'' and ``federally funded'' are
used to refer to ``Federal financial assistance,'' and are not meant
to limit application of the statute or its implementing regulations
to recipients of certain types of Federal financial assistance.
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The goal of the Department's proposed regulations is thus to fully
effectuate Title IX by clarifying and specifying the scope and
application of Title IX protections and recipients' obligation not to
discriminate on the basis of sex. Specifically, this proposed
regulatory action focuses on ensuring that recipients prevent and
address sex discrimination, including but not limited to sex-based
harassment, in their education programs or activities;
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clarifying the scope of Title IX's protection for students and others
who are participating or attempting to participate in a recipient's
education program or activity; defining important terms related to a
recipient's obligations under Title IX; ensuring the provision of
supportive measures, as appropriate to restore or preserve a
complainant's or respondent's access to the recipient's education
program or activity; clarifying a recipient's responsibilities toward
students who are pregnant or experiencing pregnancy-related conditions;
and clarifying that Title IX's prohibition on sex discrimination
encompasses discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity. In addressing confusion about coverage of sex-
based harassment in the current regulations, the Department's proposed
regulations also set out requirements that enable recipients to meet
their obligations in settings that vary in size, student populations,
and administrative structure. The proposed regulatory action would
strengthen the current framework, clarify the scope and application of
Title IX, and fully align the Title IX regulations with the
nondiscrimination mandate of Title IX.
I. History of Title IX's Nondiscrimination Mandate and Related
Regulations
Enacted in 1972, Title IX provides that ``[n]o person in the United
States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a).
Title IX is cast in broad terms. It imposes, as a condition on
receipt of Federal funds for education programs or activities, a
blanket prohibition on sex-based discrimination, with a small number of
``specific, narrow exceptions to that broad prohibition.'' Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005). Congress did not
limit Title IX's nondiscrimination condition to conduct engaged in
``by'' the recipient or its agents, but rather extended it to any
``exclu[sion] from participation in,'' ``deni[al of] the benefits of,''
or ``subject[ion] to discrimination under,'' any recipient's education
program or activity. Congress drafted Title IX ``with an unmistakable
focus on the benefited class,'' and did not ``writ[e] it simply as a
ban on discriminatory conduct by recipients of federal funds or as a
prohibition against the disbursement of public funds to educational
institutions engaged in discriminatory practices.'' Cannon v. Univ. of
Chi., 441 U.S. 677, 691-93 (1979).
Eliminating sex discrimination rooted in stereotypical perceptions
of women's abilities, competence, and worthiness to participate in
educational programs--as both student and employee--was also
fundamental to Title IX. See generally 118 Cong. Rec. 5803-12 (1972)
(statement of Sen. Birch Bayh). According to Senator Birch Bayh, Title
IX's sponsor in the U.S. Senate, discrimination in postsecondary
education was driven by the widespread, but false, perception that the
duty or desire of women to get married and bear children made them
disinterested in pursuing education or professional achievement. Id. at
5804. Because of this stereotype, many American schools did not wish to
``waste a `man's place' on a woman.'' Id. Thus, Senator Bayh said sex
discrimination in ``admissions, scholarship programs, faculty, hiring
and promotion, professional staffing, and pay scales,'' was ``one of
the great failings of the American educational system.'' Id. at 5803.
Title IX authorizes and directs the Department, as well as other
agencies ``to effectuate the provisions of section 1681 of this title
with respect to such program or activity by issuing rules, regulations,
or orders of general applicability which shall be consistent with
achievement of the objectives of the statute authorizing the financial
assistance in connection with which the action is taken.'' 20 U.S.C.
1682.
In 1979, the Supreme Court explained in Cannon v. University of
Chicago that the objectives of Title IX are two-fold: first, to ``avoid
the use of federal resources to support discriminatory practices'' and
second, to ``provide individual citizens effective protection against
those practices.'' 441 U.S. at 704. In 1982, the Court clarified the
broad scope of Title IX in North Haven Board of Education v. Bell,
stating: ``[I]f we are to give Title IX the scope that its origins
dictate, we must accord it a sweep as broad as its language.'' 456 U.S.
512, 521 (1982) (citations and internal alterations omitted).
Throughout this preamble, when the Department refers to Title IX's
nondiscrimination mandate or requirement, it means the directive of the
statutory text, including Title IX's purposes and prohibition on sex
discrimination as set out in Cannon and North Haven Board of Education.
* * * * *
In 1975, the Department's predecessor, the Department of Health,
Education, and Welfare (HEW), first promulgated regulations under Title
IX \3\ after multiple Congressional hearings. 121 Cong. Rec. 20467
(1975) (statement of Sen. Birch Bayh). They were also subject to a
statutory ``laying before'' provision, designed to afford Congress an
opportunity to examine the proposed regulations and disapprove them by
resolution within 45 days if deemed inconsistent with Title IX. N.
Haven Bd. of Educ., 456 U.S. at 531-32. The Supreme Court has held that
the fact that no such resolution succeeded ``strongly implies''
Congress' agreement with the Title IX regulations. Grove City Coll. v.
Bell, 465 U.S. 555, 568 (1984); N. Haven Bd. of Educ., 456 U.S. at 533-
35.
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\3\ 45 CFR part 86 (1975). In 1980, Congress created the United
States Department of Education. Public Law 96-88, sec. 201, 93 Stat.
669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980).
By operation of law, all of HEW's determinations, rules, and
regulations continued in effect and all functions of HEW's Office
for Civil Rights, with respect to educational programs, were
transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The
regulations implementing Title IX were recodified without
substantive change in 34 CFR part 106. See 45 FR 30802, 30955-65
(May 9, 1980).
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The regulations were promulgated to effectuate the purposes of
Title IX, specifically to ``eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance.'' 34 CFR 106.1. The regulations
implemented Title IX's nondiscrimination mandate through provisions
that addressed sex discrimination in hiring, admissions, athletics, and
other aspects of a recipient's education program or activity. See
generally 34 CFR part 106. Since 1975, the Department's Title IX
regulations have required a recipient to take actions important for the
prevention and elimination of sex discrimination, including by
designating an employee to coordinate the recipient's efforts to comply
with Title IX (34 CFR 106.8(a)), adopting a nondiscrimination policy
(34 CFR 106.8(b)), adopting and publishing grievance procedures
providing for prompt and equitable resolution of sex discrimination
complaints (34 CFR 106.8(c)), and prohibiting discrimination against
students and employees based on pregnancy and childbirth (34 CFR
106.40(b); 34 CFR 106.57). At that time, Federal courts had not yet
addressed a recipient's Title IX obligations with respect to sex-based
harassment (including sexual harassment), sex stereotyping, or
discrimination based on sexual orientation and gender identity.
Since then, the understanding of Title IX has evolved through
judicial
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interpretation, with relevant case law supporting the broad reach of
its nondiscrimination mandate, and OCR guidance and subsequent
regulations evolving accordingly. In 1992, the Supreme Court held that,
in some circumstances, a school district could be liable for monetary
damages under Title IX if a teacher sexually harasses a student.
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992); see also
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). In Gebser,
the Court specifically recognized the authority of Federal agencies,
such as the Department, to ``promulgate and enforce requirements that
effectuate [Title IX's nondiscrimination mandate],'' even in
circumstances that would not give rise to a claim for monetary damages.
524 U.S. at 292. The Court later held that schools also may be liable
for monetary damages under certain conditions if a student sexually
harasses another student in the school's program. Davis v. Monroe Cnty.
Bd. of Educ., 526 U.S. 629 (1999). OCR interpreted Title IX as
prohibiting sexual harassment as early as 1981, see U.S. Dep't of
Educ., Office for Civil Rights, Sexual Harassment: It's Not Academic,
Office for Civil Rights at 2 (1988) (1988 Sexual Harassment Pamphlet)
(quoting OCR Policy Memorandum, Aug. 31, 1981, from Antonio J. Califa,
Director for Litigation, Enforcement and Policy Service, OCR to
Regional Civil Rights Directors), https://files.eric.ed.gov/fulltext/ED330265.pdf, and issued a series of documents to provide guidance to
recipients on how to meet their obligations as well as information
about students' Title IX rights. In 2018, the Department issued a
Notice of Proposed Rulemaking (2018 NPRM) to clarify and modify the
Title IX regulations, 83 FR 61462 (Nov. 29, 2018), and in 2020 the
Department amended the Title IX regulations (the 2020 amendments)
specifying how recipients must respond to allegations of sexual
harassment in their education programs or activities. 85 FR 30026 (May
19, 2020).
Title IX has also long been understood to prohibit discrimination
related to pregnancy, consistent with its legislative history and the
broad sweep of its sex-discrimination prohibition. Conley v. Nw. Fla.
State Coll., 145 F. Supp. 3d 1073, 1077-78 (N.D. Fla. 2015); see also
Wort v. Vierling, Case No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984),
aff'd on other grounds, 778 F.2d 1233 (7th Cir. 1985); Muro v. Bd. of
Supervisors of La. State Univ. & Agric. & Mech. Coll., No. CV 19-10812,
2019 WL 5810308, at *3 (E.D. La. Nov. 7, 2019) (``Courts have held that
discrimination on the basis of pregnancy, childbirth, or related
medical conditions is a form of sex discrimination prohibited by Title
IX.''); Varlesi v. Wayne State Univ., 909 F. Supp. 2d 827, 854 (E.D.
Mich. 2012) (``[P]regnancy discrimination . . . is unquestionably
covered as a subset of sex discrimination under Title IX . . . .'').
Title IX regulations regarding pregnancy, which were part of the
1975 HEW regulations, prohibit recipients from discriminating against
students or employees based on ``pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom,'' 34 CFR
106.40(b)(1), 106.57(b), and prohibit sex-based distinctions on the
basis of ``parental, family, or marital status,'' 34 CFR 106.40(a),
106.57(a). In guidance documents from 1991 and 2013, OCR emphasized
that discrimination against pregnant students is a form of sex
discrimination that may have significant adverse consequences for
educational attainment and long-term economic stability, but the
Department's regulations regarding pregnancy have remained unchanged
since 1975. The Department proposes updated regulations to ensure full
implementation of Title IX with respect to pregnancy and related
conditions. Although the proposed regulations are based exclusively on
Title IX, the Department notes that later-enacted statutes provide
additional context and considerations related to discrimination based
on pregnancy and or related conditions. In 1978, for example, Congress
enacted the Pregnancy Discrimination Act (PDA), which amended the
prohibition on sex discrimination in Title VII of the Civil Rights Act
of 1964 (Title VII) to prohibit employers from discriminating against
employees ``on the basis of pregnancy, childbirth, or related medical
conditions.'' 42 U.S.C. 2000e. The PDA requires that ``women affected
by pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes . . . as other
persons not so affected but similar in their ability or inability to
work.'' Id. In 2015, the Equal Employment Opportunity Commission (EEOC)
issued enforcement guidance on pregnancy discrimination and related
issues clarifying that Title VII, as amended by the PDA, prohibits
discrimination based on current pregnancy, past pregnancy, potential or
intended pregnancy, and medical conditions related to pregnancy or
childbirth, including lactation. U.S. Equal Emp. Opportunity Comm'n,
Enforcement Guidance on Pregnancy Discrimination and Related Issues
(June 25, 2015) (2015 EEOC Pregnancy Guidance), https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues. Breastfeeding employees also have protections under the
Affordable Care Act (ACA), which amended the Fair Labor Standards Act
to require employers to provide reasonable break times and a private
place, other than a bathroom, for covered employees who are
breastfeeding to express milk for one year after the child's birth, 29
U.S.C. 207(r)(1). In addition, Section 188 of the Workforce Innovation
and Opportunity Act (WIOA), enforced by the Department of Labor (DOL),
prohibits WIOA Title I-financially assisted programs, activities,
training, and services from discriminating based on pregnancy,
childbirth, or related medical conditions, including lactation and
pregnancy-related disorders, as a form of sex discrimination. U.S.
Dep't of Labor, Implementation of the Nondiscrimination and Equal
Opportunity Provisions of the Workforce Innovation and Opportunity Act,
29 CFR 38.7(a), 38.8 (2017). Because both Title VII and Title IX
prohibit sex discrimination, the Supreme Court and lower Federal courts
often rely on interpretations of Title VII to inform interpretations of
Title IX, and both laws apply to employees in the educational context.
See, e.g., Franklin, 503 U.S. at 75; Jennings v. Univ. of N.C., 482
F.3d 686, 695 (4th Cir. 2007); Frazier v. Fairhaven Sch. Comm., 276
F.3d 52, 65-66 (1st Cir. 2002); Gossett v. Oklahoma ex rel. Bd. of
Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001).
Consequently, the treatment of pregnancy-related discrimination under
the PDA, the ACA, and other statutes enacted since 1975 informs, though
does not dictate, the Department's understanding of discrimination on
the basis of sex under Title IX.
The Department's Title IX regulations have never directly addressed
the application of Title IX to discrimination based on sexual
orientation or gender identity. OCR first issued guidance on the rights
of gay and lesbian students in its 1997 Sexual Harassment Guidance,
recognizing that harassment of a sexual nature directed at gay or
lesbian students may constitute sexual harassment prohibited by Title
IX. U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students,
or Third
[[Page 41395]]
Parties, 62 FR 12034, 12039 (Mar. 13, 1997) (1997 Sexual Harassment
Guidance) (revised in 2001), https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf. OCR reinforced Title IX's coverage of this
form of harassment in 2001. U.S. Dep't of Educ., Office for Civil
Rights, Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties at 3, noticed at 66
FR 5512 (Jan. 19, 2001) (rescinded upon effective date of 2020
amendments, Aug. 14, 2020) (2001 Revised Sexual Harassment Guidance),
www.ed.gov/ocr/docs/shguide.pdf. Since then, OCR has recognized that
Title IX prohibits discrimination based on gender identity. See, e.g.,
U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on
Title IX and Sexual Violence at 5 (Apr. 29, 2014) (rescinded in 2017)
(2014 Q&A on Sexual Violence), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf; U.S. Dep't of Justice and U.S. Dep't of Educ., Office for Civil
Rights, Dear Colleague Letter on Title IX and Transgender Students (May
13, 2016) (rescinded in 2017) (2016 Dear Colleague Letter on Title IX
and Transgender Students), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. Most recently, in
2021, OCR published a Notice of Interpretation in the Federal Register
to state explicitly that Title IX's prohibition on sex discrimination
encompasses discrimination on the basis of sexual orientation and
gender identity, consistent with the Supreme Court's reasoning in
Bostock. 140 S. Ct. 1731; U.S. Dep't of Educ., Office for Civil Rights,
Notice of Interpretation--Enforcement of Title IX with Respect to
Discrimination Based on Sexual Orientation and Gender Identity in Light
of Bostock v. Clayton County, 86 FR 32637 (June 22, 2021) (2021 Bostock
Notice of Interpretation), https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf.
Against this backdrop and for reasons described in this preamble,
the Secretary proposes to amend the Title IX regulations at 34 CFR
106.1, 106.2, 106.6, 106.8, 106.11, 106.21, 106.30, 106.31, 106.40,
106.41, 106.44, 106.45, 106.46, 106.51, 106.57, 106.60, 106.71, and
106.81, as well as add new 106.10 and 106.47 and redesignate current
106.16 as 106.18 in subpart B and current 106.46 to 106.48 within
subpart D. The Secretary also proposes to delete 34 CFR 106.3(c) and
(d), 106.16, 106.17, 106.30, and 106.41(d) in their entirety, and
delete portions of 34 CFR 106.15 and 106.21 to the extent they refer to
34 CFR 106.16 and 106.17.
II. The Department's Review of the Title IX Regulations
On April 6, 2021, OCR issued a letter to students, educators, and
other stakeholders that provided information about the steps the
Department was taking to review its regulations, orders, guidance,
policies, and other similar agency actions under Title IX. U.S. Dep't
of Educ., Office for Civil Rights, Letter from Acting Assistant
Secretary Suzanne B. Goldberg to Students, Educators, and other
Stakeholders re Exec. Order 14021 (Apr. 6, 2021), http://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf. This
comprehensive review, as directed by Executive Order 14021, includes
OCR's review of all agency actions, including the 2020 amendments, to
determine whether changes to the Department's Title IX regulations are
necessary to fulfill Title IX and OCR's commitment to ensuring equal
and nondiscriminatory access to education for students at all
educational levels. Id. at 2. OCR explained that its review would be
guided by ``our responsibility to ensure that schools are providing
students with a nondiscriminatory educational environment, including
appropriate supports for students who have experienced sexual
harassment, including sexual violence, and other forms of sex
discrimination.'' Id. OCR also explained that ``[t]his responsibility
includes ensuring that schools have grievance procedures that provide
for the fair, prompt, and equitable resolution of reports of sexual
harassment and other sex discrimination, cognizant of the sensitive
issues that are often involved.'' Id.
On May 20, 2021, OCR published a notice in the Federal Register
announcing a nationwide virtual public hearing to gather information
for the purpose of improving enforcement of Title IX. U.S. Dep't of
Educ., Office for Civil Rights, Announcement of Public Hearing; Title
IX of the Education Amendments of 1972, 86 FR 27429 (May 20, 2021),
https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf.
OCR expressed a particular interest in comments on the Title IX
regulations related to sexual harassment, including the 2020
amendments, and comments on discrimination based on sexual orientation
and gender identity in educational environments. Id. OCR requested live
comments through the virtual hearing platform and written comments via
email. The virtual hearing was held from June 7, 2021, to June 11,
2021. Over 280 students, parents, teachers, faculty members, school
staff, administrators, and other members of the public provided live
comments during the virtual public hearing. The transcript from the
June 2021 Title IX Public Hearing is available at https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf.
OCR received over 30,000 written comments via email. The written
comments may be viewed at https://www2.ed.gov/about/offices/list/ocr/public-hearing.html.
In addition to soliciting live and written comments as part of the
June 2021 Title IX Public Hearing, OCR also conducted listening
sessions with stakeholders expressing a variety of views on the 2020
amendments and other aspects of Title IX, including advocates for
survivors of sexual violence, students accused of sexual misconduct,
and LGBTQI+ \4\ students; organizations focused on Title IX and
athletics; organizations focused on free speech and due process;
organizations representing elementary schools, secondary schools, and
postsecondary institutions, teachers, administrators, and parents;
attorneys representing survivors, accused students, and schools; State
attorneys general offices; Title IX Coordinators and other school
administrators; individuals who provide training on Title IX to
schools; individuals who work in campus law enforcement; and
individuals who have participated in school-level Title IX proceedings.
---------------------------------------------------------------------------
\4\ The Department generally uses the term ``LGBTQI+'' to refer
to students who are lesbian, gay, bisexual, transgender, queer,
questioning, asexual, intersex, nonbinary, or describe their sex
characteristics, sexual orientation, or gender identity in another
similar way. When referring to some outside resources or past OCR
guidance documents, this preamble also uses variations of this
acronym to track the content of those documents, as appropriate.
---------------------------------------------------------------------------
Responses to OCR's request for comments for the June 2021 Title IX
Public Hearing and listening sessions with stakeholders revealed to OCR
areas of concern and confusion following the implementation of the 2020
amendments. OCR heard from stakeholders that aspects of the new
requirements were not well-suited to some or all educational
environments or to effectively advancing Title IX's nondiscrimination
mandate. More specifically, at the June 2021 Title IX Public Hearing
and in listening sessions, elementary school and secondary school
recipients expressed concern that certain requirements impeded their
successful management of the day-to-
[[Page 41396]]
day school environment. At the postsecondary level, recipients
expressed concern regarding the new requirement to provide a live
hearing with advisor-conducted cross-examination (current Sec.
106.45(b)(6)), both because of the increased administrative burden and
because of the requirement's effect on students' willingness to bring
forward complaints and participate in the grievance process. Other
stakeholders also expressed that this requirement is unnecessarily
adversarial, retraumatizing, chilling to students' willingness to
report incidents, and not more effective than other means of
determining whether a violation of the school's prohibition on sexual
harassment occurred. Still other stakeholders urged the Department to
preserve the live hearing and adversarial cross-examination
requirements. These stakeholders stated that the hearing and cross-
examination requirements ensured fundamental fairness in a high-stakes
process in a way that is consistent with the tenets of the American
justice system.
Some postsecondary recipients expressed concern that the
requirements in the 2020 amendments intruded on their professional
judgment and expertise about how best to respond to allegations of
student misconduct in their educational environment. A variety of
stakeholders, including some recipients, also expressed concerns about
the limitations on a recipient's obligation to respond to notice of
sexual harassment and the narrowing of the definition of ``sexual
harassment'' from the Department's previous position (current
Sec. Sec. 106.30, 106.44). They suggested the limitations in the 2020
amendments allowed recipients to ignore conduct that could or would
limit or deny access to their learning environment based on sex.
Similarly, stakeholders expressed concerns that recipients refused to
respond to complaints of a hostile environment based on sex in a
program or activity because the initial sexually harassing conduct
occurred off-campus or outside the United States (current Sec.
106.44). OCR also heard from stakeholders who were concerned that the
deliberate indifference standard was an inappropriately narrow standard
of responsibility for the administrative enforcement context in light
of Title IX's nondiscrimination mandate.
Stakeholders also requested that the Department clarify Title IX's
application to issues not currently addressed, or not viewed by the
stakeholders as addressed adequately, by the current regulations. In
particular, stakeholders requested that the Department specify
protections related to discrimination based on sexual orientation and
gender identity. These requests noted the historical and ongoing
discrimination experienced by LGBTQI+ students, the recent enactment of
State laws restricting transgender students from participating in
school consistent with their gender identity, and the void created by
OCR's withdrawal of its 2016 Dear Colleague Letter on Title IX and
Transgender Students. Other stakeholders urged that transgender
students must not be permitted to participate in school consistent with
their gender identity, either in all or certain circumstances.
Stakeholders also requested that the Department clarify that
discrimination based on sex characteristics is a form of sex
discrimination and, in particular, that Title IX protects intersex
students from discrimination. OCR also heard from stakeholders
requesting clarification on Title IX's protections against pregnancy
discrimination and its prohibition on rules that treat parents
differently based on sex. The Department heard more from stakeholders
in 2022 in meetings held under Executive Order 12866, after the NPRM
was submitted to OMB.
Having considered the comments and other information received in
connection with the June 2021 Title IX Public Hearing, 2021 listening
sessions, and the 2022 meetings held under Executive Order 12866, the
Department's proposed regulations aim to strengthen the current
framework, improve clarity for recipients to facilitate their
compliance, and better align the Title IX regulations with the
nondiscrimination mandate of Title IX, particularly its goal of
``provid[ing] individual citizens effective protection against
[discriminatory] practices.'' Cannon, 441 U.S. at 704. The Department's
goals are to clarify the scope of Title IX's protection from sex
discrimination for students participating or attempting to participate
in an education program or activity; to state in greater detail and
with greater clarity than in the current regulations a recipient's
responsibilities toward pregnant students; to ensure the provision of
supportive measures, as available and appropriate, to those who
experience any form of sex discrimination, including but not limited to
sex-based harassment; and to ensure that recipients understand their
obligation to address sex discrimination in their education programs or
activities. The overarching goal is to ensure that no person
experiences sex discrimination in education. To that end, the
Department aims to ensure that all recipients can implement Title IX's
nondiscrimination mandate fully and fairly in their educational
environments, including with procedures for responding to complaints of
sex discrimination that are prompt and equitable for all participants.
In reviewing the 2020 amendments, the Department also considered
its regulations implementing other laws with requirements that parallel
or overlap with a recipient's obligations under Title IX. For example,
the Department considered the requirements for postsecondary
institutions under the 2013 reauthorization of the Violence Against
Women Act (VAWA 2013), Public Law 113-4, 304, 127 Stat. 54, 89-92,
which amended the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act (Clery Act), 20 U.S.C. 1092(f) (2018). The
Clery Act requires institutions of higher education participating in
Federal financial aid programs under the Higher Education Act of 1965,
20 U.S.C. 1001 et seq. (1965), to comply with certain campus safety-
and security-related requirements. The 2013 VAWA amended the Clery Act
to require higher education institutions to compile statistics for
incidents of dating violence, domestic violence, sexual assault, and
stalking and disclose that information in their annual security
reports. 20 U.S.C. 1092(f)(1)(F)(iii). The Clery Act also requires
disclosure of certain policies, procedures, and programs, including
programs to prevent domestic violence, dating violence, sexual assault,
and stalking and programs to promote the awareness of rape,
acquaintance rape, domestic violence, dating violence, sexual assault,
and stalking among students and employees. 20 U.S.C. 1092(f)(8)(A),
(B). The Department issued regulations in 2014 to implement those
changes to the statute. Final Rule, Violence Against Women Act:
Institutional security policies and crime statistics, 79 FR 62752 (Oct.
20, 2014). https://www.govinfo.gov/content/pkg/FR-2014-10-20/pdf/2014-24284.pdf. The Violence Against Women Act Reauthorization Act of 2022
did not amend the Clery Act, but it did update the definitions of
``dating violence,'' ``domestic violence,'' and ``stalking'' in VAWA,
which are incorporated into the Clery Act and the current and proposed
Title IX regulations. Public Law 117-103, Division W, Consolidated
Appropriations Act, 2022. The Department proposes updates to the 2020
amendments as necessary to account for these changes.
[[Page 41397]]
The Department acknowledges that recipients and other stakeholders
may have made changes to their policies or procedures to align with the
2020 amendments. For example, schools have been required to revise
existing policies and procedures, or adopt new policies and procedures,
for the 2020-2021 school year and the current 2021-2022 school year in
reliance on the 2020 amendments. Recipients' changes may include--among
others--policies and procedures based on the 2020 amendments' adoption
of a new definition of ``sexual harassment'' and ``notice'' as well as
the deliberate indifference standard, mandatory dismissals, the
requirement for postsecondary recipients to hold live hearings with
cross-examination, and the training of Title IX Coordinators,
investigators, decisionmakers, and other staff regarding the new
requirements. However, stakeholder feedback from the June 2021 Public
Hearing, the 2021 listening sessions, and the 2022 meetings held under
Executive Order 12866 indicated that many recipients did not agree with
the 2020 definition of ``sexual harassment'' and had found that some of
the procedural requirements issued in 2020 made compliance more
difficult for them. Recipients expressed concern that the mandatory
dismissal requirements and live hearing and cross-examination
requirements were having a chilling effect on students who might
otherwise report sex-based harassment. The Department therefore has
good reason to believe that many recipients would appreciate the
flexibility the proposed regulations would afford them to better
fulfill their obligation not to discriminate based on sex in their
education programs or activities. For example, the proposed regulations
would enable recipients to tailor procedures to be effective at
addressing sex discrimination in their educational environment by
providing an option to conduct live hearings with cross-examination or
have the parties meet separately with the decisionmaker and answer
questions submitted by the other party when a credibility assessment is
necessary; an option to provide the parties an opportunity to review
all relevant evidence instead of being obligated to produce a written
investigative report; an option to offer informal resolution when
appropriate without having to wait for a complaint to be filed; and an
option to dismiss complaints when appropriate rather than an obligation
to dismiss in specific circumstances. In addition, some stakeholders
indicated that because the current regulations do not cover many forms
of conduct that may cause a hostile environment based on sex in their
program or activity, they created or repurposed alternative
disciplinary policies to address such conduct. Such stakeholders would
have discretion under the proposed regulations to keep in place
policies and procedures they adopted in reliance on the 2020 amendments
or to change course so long as they meet their obligations.
In addition, while the Department recognizes that there may be
reliance interests related to the current regulations, the Department's
tentative view is that the value of better aligning the regulations
with the objectives of Title IX, as reflected in proposed revisions to
the regulations, substantially outweighs those interests. The proposed
changes would strengthen implementation of Title IX and reduce the
occurrence of sex discrimination within federally funded education
programs or activities. Sex discrimination remains a serious problem
that can derail students from participating and thriving in school. The
Department's proposed changes would clarify Title IX's coverage of all
forms of sex discrimination, strengthen existing protections, and
better position schools to meet their obligation not to discriminate
based on sex. The proposed changes would better ensure that schools
take prompt and effective action to end sex discrimination, including
sex-based harassment, with support for affected students and fair
procedures for all. In short, the proposed regulations would reflect
the statute's text and case law establishing that Title IX protects
students from all forms of sex discrimination, including discrimination
based on sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity. Moreover, as
discussed in the Regulatory Impact Analysis, compliance with the
proposed regulations would result in cost savings to recipients.
The Department has considered the interests that stakeholders may
have in avoiding further changes to recipient policies and procedures
or additional costs that may be required to comply with the proposed
regulations. At the same time, the Department has also considered
stakeholders' interests in having Title IX regulations that are
sufficiently clear to allow for effective implementation and that
provide recipients with flexibility and discretion to meet their Title
IX obligations and to maintain any policies and procedures that do not
conflict with Title IX or the proposed regulations. Based on the
information OCR received during the June 2021 Title IX Public Hearing
and additional listening sessions, as well as the 2022 meetings held
under Executive Order 12866, the Department believes that substantial
interests support each change reflected in the proposed regulations,
that these changes are designed to ensure full implementation of Title
IX's nondiscrimination mandate, and that the benefits of the proposed
changes in facilitating that implementation far outweigh the potential
interests in maintaining the existing regulations. In each instance in
which the Department is proposing to change an existing regulatory
requirement, the preamble acknowledges that change when discussing the
regulation and explains the Department's reasons for proposing the
change. The most significant proposed revisions to the Title IX
regulations are summarized below.
Significant Proposed Regulations
The Department is proposing significant revisions to several
subcategories of the Title IX regulations. The Department discusses
these significant revisions by topic rather than in numerical order.
Generally, the Department does not address proposed regulatory changes
that are technical or otherwise minor in effect.
First, the Department discusses its proposed changes to existing
definitions and its proposed new definitions of terms of general
applicability in the regulations (proposed Sec. 106.2), and its
proposed provisions regarding the effect of other requirements and
preservation of rights (proposed Sec. 106.6). The Department then
clarifies that Title IX obligates a recipient to respond to sex
discrimination within the recipient's education program or activity in
the United States, even if it occurs off-campus, including but not
limited to conduct that occurs in a building owned or controlled by a
student organization that is officially recognized by a postsecondary
institution and conduct that is subject to the recipient's disciplinary
authority. It also requires a recipient to respond to a hostile
environment based on sex within its education program or activity in
the United States, even if sex-based conduct contributing to the
hostile environment occurred outside the recipient's education program
or activity or outside the United States (proposed Sec. 106.11).
Second, the Department discusses a recipient's obligation to
operate its education program or activity free from sex discrimination,
and administrative requirements such as the responsibilities of a
recipient to
[[Page 41398]]
designate a Title IX Coordinator, disseminate a policy of
nondiscrimination on the basis of sex, adopt prompt and equitable
grievance procedures, and keep records to document its Title IX
compliance (proposed Sec. 106.8). The Department also discusses its
proposed notification requirement, which would instruct recipients to
require certain employees to notify the Title IX Coordinator when they
have information about conduct that may constitute sex discrimination
under Title IX, and would require other employees who have information
about conduct that may constitute sex discrimination under Title IX to
either (1) notify the Title IX Coordinator or (2) provide any person
who gives them information about such conduct with the contact
information for the Title IX Coordinator and information about how to
report sex discrimination (proposed Sec. 106.44(c)). The Department
also addresses a recipient's obligation to offer supportive measures,
as appropriate, to a complainant and respondent upon being notified of
conduct that may constitute sex discrimination under Title IX, to the
extent necessary to restore or preserve that party's access to the
recipient's education program or activity (proposed Sec. 106.44(g)).
The Department also discusses its proposed definition of ``sex-
based harassment'' (proposed Sec. 106.2) and explains in more detail
its proposed changes to the regulations regarding grievance procedures
for complaints of sex discrimination (proposed Sec. 106.45), including
its proposals to include the basic requirements for grievance
procedures such as treating the complainant and respondent equitably
(proposed Sec. 106.45(b)(1)); the requirement to objectively evaluate
all relevant evidence that is not otherwise impermissible (proposed
Sec. 106.45(b)(6) and (7)); the standard of proof for all complaints
of sex discrimination (proposed Sec. 106.45(h)(1)); and the
requirement that grievance procedures be followed before the imposition
of any disciplinary sanctions (proposed Sec. 106.45(h)(4)). The
Department also explains proposed bases for discretionary dismissal of
a complaint (proposed Sec. 106.45(d)) and the proposed requirement
that the recipient have a process for the decisionmaker to adequately
assess the credibility of the parties and witnesses to the extent that
credibility is in dispute and relevant to evaluating one or more of the
allegations of sex discrimination (proposed Sec. 106.45(g)). The
Department also describes the additional proposed requirements for
postsecondary institutions in cases of sex-based harassment involving a
student complainant or student respondent (proposed Sec. 106.46),
including the role of an advisor (proposed Sec. 106.46(e)(2)) and
revised hearing procedures (proposed Sec. 106.46(g)). The Department
states that a recipient will not be deemed to have violated the Title
IX regulations solely because the Assistant Secretary would have
reached a different determination than the recipient reached based on
an independent weighing of the evidence in sex-based harassment
complaints (proposed Sec. 106.47).
Third, the Department describes its proposed revisions to the Title
IX regulations related to pregnancy or related conditions as well as
sex discrimination related to marital, parental, and family status, to
provide clarity to recipients about their obligation not to
discriminate against students or employees who are pregnant or
experiencing pregnancy-related conditions. These proposed revisions aim
to ensure that students and employees who are pregnant or experiencing
pregnancy-related conditions are not subject to discrimination based on
sex in education programs or activities and include revisions to the
definitions of ``pregnancy or related conditions'' and ``parental
status'' (proposed Sec. 106.2) as well as revisions to the regulations
on admissions (proposed Sec. 106.21(c)); parental, family, or marital
status of students (proposed Sec. 106.40(a)); pregnancy or related
conditions of students (proposed Sec. 106.40(b)); employment (proposed
Sec. 106.51(b)(6)); parental, family, or marital status of employees
(proposed Sec. 106.57(a)); pregnancy or related conditions of
employees (proposed Sec. 106.57(b) and (e)); and pre-employment
inquiries (proposed Sec. 106.60).
Fourth, the Department proposes to clarify Title IX's scope of
application, including nondiscrimination on the basis of sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity (proposed Sec. 106.10). The
Department also proposes clarifying Title IX's general prohibition on
sex discrimination in education programs or activities receiving
Federal financial assistance (proposed Sec. 106.31(a)). The preamble
explains that unless otherwise provided by Title IX or the regulations,
in contexts in which a recipient may provide sex-separate programs or
rules, such different treatment must not be applied to individuals in a
way that would cause more than de minimis harm, which includes adopting
a policy or engaging in a practice that prevents a person from
participating in an education program or activity consistent with their
gender identity (proposed Sec. 106.31(a)(2)).
Fifth, the Department discusses proposed revisions to the
prohibition on retaliation (proposed Sec. 106.71) that would build on
the current regulations and further clarify what types of conduct would
constitute prohibited retaliation, including peer retaliation.
Finally, the Department explains its proposal to delete outdated
regulatory provisions (Sec. 106.2(s) Definition of Transition Plan;
Sec. 106.3(c) and (d) Self-evaluation; Sec. 106.15(b) Admissions;
Sec. Sec. 106.16-106.17 Transition Plans; Sec. 106.21(a) Admission;
and Sec. 106.41(d) Adjustment period).
It is the Department's intent that the severability clauses set out
in Sec. Sec. 106.9, 106.18 (proposed to be redesignated at Sec.
106.16), 106.24, 106.46 (proposed to be redesignated as Sec. 106.48),
106.62, and 106.72 of the 2020 amendments remain applicable to the
proposed changes set out below. As discussed in the 2020 amendments, it
is the Department's position that each of the proposed regulations
discussed in this preamble would serve an important, related, but
distinct purpose. 85 FR 30538. Each provision provides a distinct value
to recipients, elementary schools, secondary schools, postsecondary
institutions, students, employees, the public, taxpayers, the Federal
government, and other recipients of Federal financial assistance
separate from, and in addition to, the value provided by the other
provisions. To best serve these purposes, the continued application of
the severability clauses in the 2020 amendments clarifies that the
proposed regulations operate independently of each other and that the
potential invalidity of one provision should not affect the other
provisions. In addition, the Department intends that any final
regulations following these proposed regulations be enforced
prospectively and not retroactively.
I. Provisions of General Applicability
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance,''
20 U.S.C. 1681(a), but does not specify how recipients can meet their
Title IX obligations. The Department has the authority to ``effectuate
the provisions'' of the Title IX prohibition on discrimination on the
basis of sex in
[[Page 41399]]
education programs or activities receiving Federal financial
assistance, specifically under 20 U.S.C. 1682 and generally under 20
U.S.C. 1221e-3 and 3474. Title IX also provides that the Department may
secure compliance by ``the termination of or refusal to grant or to
continue assistance,'' or ``by any other means authorized by law.'' 20
U.S.C. 1682. The Department may take such action only after providing a
recipient with notice of the failure to comply with the statute and the
Department's regulatory requirements under Title IX and after
determining that ``compliance cannot be secured by voluntary means.''
Id.
A. Purpose
Section 106.1 Purpose and Effective Date
Current regulations: Section 106.1 has the heading of ``Purpose and
effective date.'' Current Sec. 106.1 states that the purpose of the
regulations is ``to effectuate title IX of the Education Amendments of
1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except sections 904
and 906 of those Amendments) which is designed to eliminate (with
certain exceptions) discrimination on the basis of sex in any education
program or activity receiving Federal financial assistance, whether or
not such program or activity is offered or sponsored by an educational
institution as defined in this part.'' Current Sec. 106.1 further
states that the regulations are ``intended to effectuate section 844 of
the Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484.''
Finally, current Sec. 106.1 provides that the effective date of the
regulations is July 21, 1975.
Proposed regulations: The Department proposes consolidating the
reference to Title IX in the first sentence by removing ``of the
Education Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat.
1855 (except sections 904 and 906 of those Amendments).'' The
Department also proposes removing the sentence that identifies the
effective date of the regulations.
Reasons: Current Sec. 106.2 defines ``Title IX'' and proposed
Sec. 106.2 would retain this definition of Title IX with minor
revisions for completeness, accuracy, and readability. Because proposed
Sec. 106.2 would define ``Title IX,'' the Department proposes removing
the legislative history of Title IX from Sec. 106.1. In addition, it
is the Department's view that it is unnecessary to retain a reference
to the original effective date of the Title IX regulations in light of
the passage of time since the enactment of Title IX and the several
amendments that have followed. Because proposed Sec. 106.1 would no
longer include the effective date, the Department also proposes
revising the section heading to ``Purpose.''
B. Definitions
The Department proposes including all definitions in Sec. 106.2,
the original regulatory section containing definitions for all of the
Department's Title IX implementing regulations. As part of the 2020
amendments, the Department added a separate definitions section, Sec.
106.30, that included definitions related to a recipient's obligation
to address sexual harassment. Because the definitions in that section
pertain to a recipient's general obligations to take action to end sex
discrimination, the Department proposes moving these definitions to
Sec. 106.2.
The Department also proposes to reorganize the definitions at Sec.
106.2. The existing definitions section does not present the
definitions alphabetically, which may create confusion for recipients
and others. Proposed Sec. 106.2 would reorder the definitions to
present them in alphabetical order. The Department also proposes
technical edits to accommodate the consolidation of the definitions
into Sec. 106.2 and associated numbering changes.
Because the Department proposes consolidating all definitions into
Sec. 106.2, the proposed regulatory text would include existing
definitions in current Sec. 106.2, as well as definitions that are new
to that section. The Department limits its discussion in this preamble
to the definitions that the Department proposes adding and the
definitions for which the Department is proposing changes that are not
exclusively technical in nature.
Immediately below, the Department discusses proposed revisions to
definitions and new definitions that apply throughout the Title IX
regulations. In later topical sections of this preamble, the Department
discusses proposed definitions relevant to those topics.
Section 106.2 Definition of ``Administrative Law Judge''
Current regulations: Section 106.2(f) defines ``administrative law
judge'' as ``a person appointed by the reviewing authority to preside
over a hearing held under this part.''
Proposed regulations: The Department proposes changing the
reference to a hearing held ``under this part'' to refer to a hearing
held ``under Sec. 106.81.''
Reasons: The proposed definition would replace the general
reference to ``a hearing held under this part'' with a specific
reference to a hearing held under Sec. 106.81. This clarification is
necessary to distinguish a hearing conducted as part of a postsecondary
institution's sex-based harassment grievance procedures in proposed
Sec. 106.46 from a hearing conducted by an administrative law judge to
secure a recipient's compliance with Title IX. Current and proposed
Sec. 106.81 adopt and incorporate into the Title IX regulations the
procedural provisions applicable to Title VI of the Civil Rights Act of
1964, specifically 34 CFR 100.6-100.11 and part 101. Proposed
Sec. Sec. 106.2 (definition of ``retaliation'') and 106.46 discuss
hearings conducted as part of a recipient's sex-based harassment
grievance procedures.
Section 106.2 Definition of ``Applicant''
Current regulations: Section 106.2(j) defines ``applicant'' as
``one who submits an application, request, or plan required to be
approved by a Department official, or by a recipient, as a condition to
becoming a recipient.''
Proposed regulations: The Department proposes adding language to
clarify that this definition refers to the use of the term
``applicant'' in the definition of ``educational institution'' in Sec.
106.2 and to the use of the term ``applicant'' in Sec. 106.4.
Reasons: The proposed regulations would clarify that the definition
of ``applicant'' in proposed Sec. 106.2, which refers to one who seeks
to become a recipient, applies only to the use of the term
``applicant'' in the definition of ``educational institution'' in
current Sec. 106.2 and to the use of the term ``applicant'' in Sec.
106.4. In other provisions in the current and proposed regulations,
applicant refers to one who is applying for admission as a student or
other participant in a recipient's education program or activity (e.g.,
Sec. 106.21) or applying for employment (e.g., Sec. 106.51). Because
the definition of ``applicant'' in current Sec. 106.2 does not apply
throughout the regulations, the Department proposes revising the
definition to identify the specific provisions to which this definition
applies.
Section 106.2 Definitions of ``Elementary School'' and ``Secondary
School''
Current regulations: Section 106.30(b) defines an ``elementary and
secondary school'' for purposes of Sec. Sec. 106.44 and 106.45 as a
``local educational agency (LEA), as defined in the Elementary and
[[Page 41400]]
Secondary Education Act of 1965, as amended by the Every Student
Succeeds Act (ESEA); a preschool; or a private elementary or secondary
school.''
Proposed regulations: The Department proposes removing the
definition of ``elementary and secondary school'' and, in its place
providing separate definitions of ``elementary school'' and ``secondary
school'' in Sec. 106.2. Proposed Sec. 106.2 would define an
``elementary school'' as that term is defined by section 8101 of the
ESEA (20 U.S.C. 7801(19)), and a ``public or private preschool.''
Proposed Sec. 106.2 would define a ``secondary school'' as that term
is defined by section 8101 of the ESEA (20 U.S.C. 7801(45)), and an
``institution of vocational education'' as defined in Sec. 106.2 that
serves secondary school students.
Reasons: The proposed definitions of both ``elementary school'' and
``secondary school'' would remove the references to current Sec. Sec.
106.44 and 106.45 that are in the current definition of ``elementary
and secondary school,'' because those sections are limited to sexual
harassment, whereas the proposed definitions would apply to all
provisions within part 106. The proposed definitions also would remove
explicit references to private schools because these schools are
already included in the ESEA definitions of ``elementary school'' and
``secondary school,'' making these references unnecessary.
The proposed revisions would separately define ``elementary
school'' and ``secondary school'' because there is a provision in the
proposed regulations that distinguishes between elementary schools and
secondary schools. For consistency with the Title IX statute at 20
U.S.C. 1681(c), which states that Title IX applies to public and
private preschools, the proposed definition of ``elementary school''
also would cover a public or private preschool. The ESEA does not
separately define ``preschool'' and the Department has not previously
done so in its Title IX regulations. The Department's position remains
that a separate definition of ``preschool'' is not necessary and that
public and private preschools fall within the proposed definition of
``elementary school.''
The proposed definition of ``secondary school'' would also cover an
institution of vocational education that serves secondary school
students. This addition is necessary to ensure coverage of secondary
school students who attend vocational institutions and to align with
the definition of ``postsecondary institution'' in both the current and
proposed regulations, which includes institutions of vocational
education that serve postsecondary school students. As defined in
current Sec. 106.2(o) and proposed Sec. 106.2, an ``institution of
vocational education'' could serve both secondary and postsecondary
school students but secondary school students attending institutions of
vocational education are unaccounted for in the current definition of
``elementary and secondary school.''
Section 106.2 Definition of ``Postsecondary Institution''
Current regulations: Section 106.30(b) defines ``postsecondary
institution'' for purposes of Sec. Sec. 106.44 and 106.45 as an
institution of graduate higher education as defined in Sec. 106.2(l),
an ``institution of undergraduate higher education'' as defined in
Sec. 106.2(m), an ``institution of professional education'' as defined
in Sec. 106.2(n), or an ``institution of vocational education'' as
defined in Sec. 106.2(o).
Proposed regulations: The Department proposes moving the definition
of ``postsecondary institution'' from Sec. 106.30(b) to Sec. 106.2
with minor revisions. Proposed Sec. 106.2 would define a
``postsecondary institution'' as an ``institution of graduate higher
education'' as defined in Sec. 106.2, an ``institution of
undergraduate higher education'' as defined in Sec. 106.2, an
``institution of professional education'' as defined in Sec. 106.2, or
an ``institution of vocational education'' as defined in Sec. 106.2
that serves postsecondary school students.
Reasons: The proposed definition would remove specific references
to Sec. Sec. 106.44 and 106.45 in the current definition of
``postsecondary institution'' because those sections are limited to
sexual harassment, whereas the proposed definition of ``postsecondary
institution'' in Sec. 106.2 would apply to all of part 106. The
proposed revisions also would clarify that the definition of
``postsecondary institution'' applies to an ``institution of vocational
education'' as defined in Sec. 106.2 that serves postsecondary
students. It is the Department's current view that this clarification
is necessary because an ``institution of vocational education,'' as
defined in Sec. 106.2, could serve secondary school students or
postsecondary institution students.
Section 106.2 Definition of ``Student With a Disability''
Current regulations: None.
Proposed regulations: The Department proposes adding a definition
of ``student with a disability'' to mean a student who is an individual
with a disability who would be covered by Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 705(9)(B), (20)(B), or a child
with a disability as defined in the Individuals with Disabilities
Education Act, 20 U.S.C. 1401(3).
Reasons: It is the Department's view that it is important to
clarify how a recipient's Title IX obligations intersect with its
obligation to ensure the rights of students with disabilities. The
proposed regulations include provisions in Sec. Sec. 106.8(e) and
106.44(g)(7) that would require a recipient to consider the
requirements of Federal disability laws when implementing the Title IX
regulations. A definition of a ``student with a disability'' is
necessary for recipients to understand the scope of these two sets of
obligations and how they intersect, and thus would strengthen overall
enforcement of Title IX.
Section 106.2 Definition of ``Title IX''
Current regulations: Section 106.2(a) defines ``Title IX'' as
``title IX of the Education Amendments of 1972, Pub. L. 92-318, as
amended by section 3 of Pub. L. 93-568, 88 Stat. 1855, except sections
904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.''
Proposed regulations: The Department proposes updating this
definition to incorporate statutory additions of sections 1687 and 1688
and to simplify its language.
Reasons: The current definition omits two sections of Title IX that
were added in 1988 and relies on unnecessarily legalistic language. The
proposed definition would be a more complete and accurate description
of Title IX and it is presented in more accessible language.
C. Application
Section 106.11 Application
Current regulations: Section 106.11 states that, except as provided
in this subpart, the Department's Title IX regulations apply to every
recipient and its education program or activity that receives Federal
financial assistance. The Civil Rights Restoration Act of 1987 amended
Title IX to add a definition of ``program or activity.'' 20 U.S.C.
1687. In 2000, the Department amended the Title IX regulations to
incorporate the statutory definition of ``program or activity'' at 34
CFR 106.2(h), which provides that a recipient's education program or
activity encompasses all of its operations. 65 FR 68050 (Nov. 13,
2000). Current Sec. 106.44(a) defines an ``education program or
activity'' for purposes of Sec. Sec. 106.30, 106.44, and 106.45 to
include locations, events, or circumstances over which the recipient
[[Page 41401]]
exercised substantial control over both the respondent and the context
in which the sexual harassment occurs, and also includes any building
owned or controlled by a student organization that is officially
recognized by a postsecondary institution. Current Sec. Sec. 106.8(d)
and 106.44(a) limit the geographic scope of a recipient's obligation to
address sexual harassment to incidents that occurred against a person
while that person was in the United States. In addition, current Sec.
106.45(b)(3)(i) requires a recipient to dismiss a formal complaint of
sexual harassment if the alleged conduct did not occur against a person
while that person was in the United States.
Proposed regulations: The Department proposes amending Sec.
106.11, to clarify that Title IX's prohibition on sex discrimination
applies to all sex discrimination occurring both under a recipient's
education program or activity and in the United States. The proposed
regulations would make clear that conduct that occurs under a
recipient's education program or activity includes but is not limited
to conduct that occurs in a building owned or controlled by a student
organization that is officially recognized by a postsecondary
institution, which is consistent with current Sec. 106.44(a), and
conduct that is subject to the recipient's disciplinary authority. It
would also specify that a recipient has an obligation to address a sex-
based hostile environment under its education program or activity, even
if sex-based harassment contributing to that hostile environment
occurred outside the recipient's education program or activity or
outside the United States. Finally, the Department proposes eliminating
the language in current Sec. 106.44(a) that defines ``education
program or activity'' for purposes of sexual harassment to ensure that
the term is applied uniformly throughout the regulations for all forms
of sex discrimination, including sex-based harassment.
Reasons: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). This statutory prohibition limits Title IX's
application in two ways: the sex discrimination must occur (1) under
the recipient's program or activity, and (2) against a person in the
United States.
The current regulations require a recipient to dismiss a formal
complaint of sexual harassment and not use its Title IX grievance
process if the conduct did not occur against a person in the United
States, even if that conduct contributes to a hostile environment in
the recipient's education program or activity in the United States.
After receiving input from stakeholders, the Department has
reconsidered its prior interpretation of Title IX's statutory language
from the 2020 amendments and proposes revising the current regulations
to more clearly and completely describe the circumstances in which
Title IX applies. In proposed Sec. 106.11, consistent with 20 U.S.C.
1687, the Department would clarify that an education program or
activity includes all of the recipient's operations and that conduct
occurring under a recipient's education program or activity would
include but is not limited to conduct that occurs in a building owned
or controlled by a student organization that is officially recognized
by a postsecondary institution and conduct that is ``under the school's
disciplinary authority.'' See Davis, 526 U.S. at 646-47 (concluding
``that recipients of federal funding may be liable for `subject[ing]'
their students to discrimination . . . [for] acts of student-on-student
sexual harassment [when] the harasser is under the school's
disciplinary authority''). Proposed Sec. 106.11 would also recognize
that even when an act of sex-based harassment occurs outside the
recipient's education program or activity, or outside the United
States, that conduct could contribute to a hostile environment based on
sex under the recipient's education program or activity, or otherwise
exclude a person from participation in, deny them the benefits of, or
subject them to sex discrimination under the recipient's education
program or activity in the United States. If such sex discrimination
occurs, the recipient must address it.
Obligation to address conduct occurring within the school's
operations. Under the proposed regulations, consistent with the current
regulations, a recipient's education program or activity would include
buildings or locations that are part of the school's operations,
including online learning platforms. 34 CFR 106.44(a). A recipient's
education program or activity would also include all of its academic
and other classes, extracurricular activities, athletics programs, and
other aspects of the recipient's education program or activity, whether
those programs or activities take place in the facilities of the
recipient, via computer and internet networks, on digital platforms,
with computer hardware or software owned, operated by, or used in the
operations of the recipient, on a school bus, at a class or training
program sponsored by the recipient at another location, or elsewhere.
The Department's discussion in the preamble to the 2020 amendments
regarding Title IX and online platforms used by a recipient would thus
remain relevant under the proposed regulations. Specifically, in the
preamble to the 2020 amendments the Department explained that the
operations of a recipient ``may certainly include computer and internet
networks, digital platforms, and computer hardware or software owned or
operated by, or used in the operations of, the recipient.'' 85 FR
30202. The Department further explained that ``the factual
circumstances of online harassment must be analyzed to determine if it
occurred in an education program or activity.'' Id. The Department
would maintain the same position in the proposed regulations as stated
in the preamble to the current regulations: The definition of ``program
or activity'' in the Title IX regulations does not create a distinction
between sex discrimination occurring in person and that occurring
online. Id. at 30203.
Under the proposed regulations, consistent with the current
regulations, conduct occurring under a recipient's education program or
activity would extend to conduct in off-campus settings that are
operated or overseen by the school (e.g., a school field trip) and off-
campus buildings owned or controlled by a student organization
officially recognized by a postsecondary institution. Id.; 85 FR 30196-
98; see, e.g., Farmer v. Kan. State Univ., 16-cv-2256-JAR-GEB, 2017 WL
980460, at *7-10 (D. Kan. Mar. 14, 2017) (finding plaintiff
sufficiently alleged that Kansas State University exercised substantial
control over off-campus assault at a fraternity because the fraternity
was subject to oversight by University and University had the authority
to discipline fraternity), aff'd on other grounds, 918 F.3d 1094 (10th
Cir. 2019); Weckhorst v. Kan. State Univ., 241 F. Supp. 3d 1154, 1166-
70 (D. Kan. 2017), aff'd sub nom. Farmer v. Kan. State Univ., 918 F.3d
1094 (10th Cir. 2019) (holding plaintiff sufficiently alleged that
Kansas State University exercised substantial control over off-campus
assault that occurred during a fraternity event at a local park because
the University subjected the fraternity to oversight and had the
authority to discipline fraternity); S.C. v. Metro. Gov't of Nashville,
No. 17-1098, 2022 WL 127978, *25 (M.D. Tenn. Jan. 12, 2022), appeal
pending (noting that the Court's ``formulation of potential
[[Page 41402]]
liability for peer harassment notably shied away from drawing a hard
line based on geography, focusing instead on whether the harassment was
taking place `under' an `operation' of the funding recipient'' (citing
Davis, 526 U.S. at 646)).
Obligation to address conduct that occurs under the school's
disciplinary authority. Conduct occurring under a recipient's education
program or activity would also include other settings in the United
States but off campus or off school grounds when the conduct ``is under
the school's disciplinary authority.'' Davis, 526 U.S. at 647; cf.
Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2045 (2021) (noting a
school's ``regulatory interests remain significant in some off-campus
circumstances'' and ``several types of off-campus behavior . . . may
call for school regulation,'' including ``serious or severe bullying or
harassment targeting particular individuals [and] threats aimed at
teachers or other students''). Thus, the proposed regulations would
adopt the Department's recognition in the preamble to the 2020
amendments that a teacher's sexual harassment of a student is
``likely'' to constitute sexual harassment ``in the program'' of the
school even if the harassment occurs off campus or off school grounds
and outside a school-sponsored activity. 85 FR 30200.
In addition, some schools have codes of conduct that address
interactions, separate from discrimination, between students that occur
off campus. If a school has such a code of conduct, then it may not
disclaim responsibility for addressing sex discrimination that occurs
in a similar context. If the school responds when, for instance, one
student steals from another at an off-campus location, or when a
student engages in a nonsexual assault of another student at an off-
campus location, it must likewise respond when a student engages in
sexual assault or sex-based harassment of another student off campus.
Thus, the proposed rule would make clear, as in the 2020 amendments,
that whether conduct falls under a recipient's education program or
activity for purposes of Title IX is not contingent on the geographic
location of the underlying conduct, but rather on whether the recipient
exercises disciplinary authority over the respondent's conduct in that
context. See, e.g., DeGroote v. Ariz. Bd. of Regents, No. CV-18-00310-
PHX-SRB, 2020 WL 10357074, at *8 (D. Ariz. Feb. 7, 2020) (finding a
school exercised control over harasser and context of harassment, in
part, because the school's code of conduct addressed off-campus
behavior and because the location of the initial harassment ``is not
dispositive'').
Obligation to address hostile environment created by conduct
outside of the education program or activity. Proposed Sec. 106.11
would also clarify that Title IX obligates a recipient to address a
hostile environment occurring within the recipient's education program
or activity, even if the underlying sex-based harassment contributing
to the hostile environment does not occur in the recipient's education
program or activity or occurs outside the United States.
During OCR's numerous listening sessions and in the June 2021 Title
IX Public Hearing, many stakeholders indicated that the current
regulations could be interpreted to exclude conduct that occurs off
campus or off school grounds outside of a recipient's education program
or activity, or that occurs in a program or activity but outside the
United States, even when that conduct creates a hostile environment
based on sex in an education program or activity within the United
States. They further asserted that Title IX requires a recipient to
address a hostile environment based on sex in the recipient's education
program or activity, regardless of whether the sex-based harassment
contributing to that hostile environment occurred elsewhere. The
Department takes seriously these comments and agrees that clarification
is needed. After considering this issue and reweighing the facts and
circumstances, including this feedback, the Department proposes
regulatory language to enforce the full scope of Title IX's
nondiscrimination mandate and ensure that recipients provide a
nondiscriminatory environment for all students within their programs
and activities in the United States. Proposed Sec. 106.11 would
clarify that Title IX's prohibition on sex discrimination would apply
to a hostile environment under a recipient's education program or
activity, even if sex-based harassment contributing to such a hostile
environment occurred outside of the recipient's education program or
activity or occurred within an education program or activity but
outside of the United States.
In the preamble to the 2020 amendments, the Department explained
that in the context of a private lawsuit for monetary damages, the
Supreme Court applied Title IX's program or activity language to ``
`limit a recipient's damages liability to circumstances wherein the
recipient exercises substantial control over both the harasser and the
context in which the known harassment occurs.' '' 85 FR 30196 (quoting
Davis, 526 U.S. at 645). The Department acknowledged that the Court's
decision was in the context of a lawsuit for monetary damages and not
in the administrative enforcement context, but stated that because the
Department, like the Court, is constrained by the text of the statute,
including the definition of ``program or activity,'' a similar analysis
is appropriate in the administrative enforcement context. Id. at 30196
n.863. The Department recognizes that some Federal courts in private
suits for monetary damages have held a school not liable under Title IX
for harassment that occurred outside of the recipient's control. See,
e.g., Roe v. St. Louis Univ., 746 F.3d 874, 883-84 (8th Cir. 2014)
(holding that there was insufficient evidence alleged to demonstrate
that university was deliberately indifferent to plaintiff's allegations
of rape by a fellow student in a private residence over which the
University exercised no control); Samuelson v. Or. State Univ., 162 F.
Supp. 3d 1123, 1132-34 (D. Or. 2016) (finding that plaintiff did not
allege facts to demonstrate university had any control over a rape by a
non-student at a private apartment for purposes of ``pre-assault
liability'' and dismissing as time-barred plaintiff's allegations of
deliberate indifference following her report of the rape to the
university). In those cases, however, there were no actionable
allegations that the schools were deliberately indifferent to a hostile
environment based on sex within the recipient's education program or
activity.
Indeed, several Federal courts have held that, even for purposes of
monetary damages under Davis, Title IX requires recipients to evaluate
and address allegations of a hostile environment within a recipient's
education program or activity, even when an initial incident of sex-
based harassment may have occurred outside of the recipient's education
program or activity. See, e.g., Rost v. Steamboat Springs RE-2 Sch.
Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 2008) (citing Davis, 526 U.S.
at 645) (recognizing that sexual assault occurring in settings outside
of the school can create Title IX liability, as long as there is ``some
nexus between the out-of-school conduct and the school,'' but finding
that in this case, the district's response to such conduct was not
deliberately indifferent); Spencer v. Univ. of N.M. Bd. of Regents, 15-
cv-141-MCA-SCY, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016)
(concluding that a reasonable jury could
[[Page 41403]]
find the recipient deliberately indifferent for its failure to address
the risk created by the possibility of future encounters between the
plaintiff and the men who raped her off campus); L.E. v. Lakeland Joint
Sch. Dist. #272, 403 F. Supp. 3d 888, 900-01 (D. Idaho 2019) (finding
that the district was responsible for responding to a hostile
environment in its education program or activity even where the initial
sexual assault occurred outside the school's education program or
activity).
The Department's current view is that these decisions are correct
in reading Davis to require a recipient to address a hostile
environment based on sex that exists within its education program or
activity, whether or not the initial sex-based harassment or other
contributing acts of sex-based harassment may have occurred elsewhere.
This is because when the hostile environment exists within a
recipient's education program or activity, the recipient exercises
substantial control over both the harasser and the context. See Davis,
526 U.S. at 645. A recipient cannot, therefore, sever incidents that
happened outside of its education program or activity from any
subsequent harassment or resulting hostile environment within the
recipient's control. L.E., 403 F. Supp. 3d at 900. To do so would allow
``a person'' to be ``subjected to discrimination under an[ ] education
program or activity receiving Federal financial assistance'' in
violation of Title IX's explicit text. 20 U.S.C. 1681(a).
For example, Student A reports that Student B sexually assaulted
her while participating in the recipient's study abroad program and
both students have now returned to campus in the United States. Student
A reports that Student B has been taunting her with sexually suggestive
comments about the prior assault since their return to campus. Because
of the sexual assault and Student B's continuing conduct, Student A is
unable to concentrate or participate fully in her classes and
activities where Student B is present. In this scenario, because
Student A has alleged a hostile environment based on sex within the
recipient's education program or activity within the United States, the
recipient would have an obligation to take action to address those
allegations. The proposed regulations would require the recipient to
provide Student A with appropriate supportive measures and, if the
recipient's investigation finds that a hostile environment exists
within its education program or activity, take action against Student B
after following all applicable grievance procedures.
Evaluating whether a hostile environment exists as a result of
conduct that is otherwise not covered by Title IX is a fact-specific
inquiry. Consistent with Federal case law, when sex-based harassment
occurs outside of the United States or outside of a recipient's
education program or activity, it will not always result in a hostile
environment that is within a recipient's control. The definition of
``sex-based harassment'' in proposed Sec. 106.2 would set out the
minimum factors that must be considered in determining whether a
hostile environment has been created in a recipient's education program
or activity. These factors would also apply when determining whether
sex-based harassment that occurred outside of a recipient's education
program or activity has created a sex-based hostile environment in a
recipient's education program or activity. A recipient should also
consider in its fact-specific inquiry whether a complainant's
encounters with an alleged respondent in the recipient's education
program or activity give rise to a hostile environment, even when the
incidents of harassment occurred outside of the recipient's education
program or activity. See Williams v. Bd. of Regents of Univ. Sys. of
Ga., 477 F.3d 1282, 1296-98 (11th Cir. 2007) (reasoning that Title IX
claim could arise when a student withdrew from university rather than
risk encountering her alleged perpetrators on campus when school waited
months before taking action in response to her complaint); Kinsman v.
Fla. State Univ. Bd. of Trustees, No. 4:15cv235-MW/CAS, 2015 WL
11110848, at *4 (N.D. Fla. Aug. 12, 2015) (holding that the effect of
sex-based harassment does not end with the cessation of the harassing
conduct, particularly when the complainant and respondent both remain
at the institution and agreeing ``that the possibility of further
encounters `between a rape victim and her attacker could create an
environment sufficiently hostile to deprive the victim of access to
educational opportunities provided by a university.' '' (citation
omitted)); Spencer, 2016 WL 10592223, at *6 (`` `[A] reasonable jury
[may] conclude that further encounters, of any sort, between a rape
victim and her attacker could create an environment sufficiently
hostile to deprive the victim of access to educational opportunities
provided by a university.' '' (quoting Kelly v. Yale Univ., No. 3:01-
CV-1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003))); Doe v.
Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006) (holding
that the ``constant potential for interactions'' between a harasser and
rape victim due to the harasser's presence on campus could constitute
sex-based harassment); Crandell v. N.Y. Coll. of Osteopathic Med., 87
F. Supp. 2d 304, 316 (S.D.N.Y. 2000) (harassment by former professor at
off-campus internship required Title IX response by school when ``the
presence of the perpetrator at the institution would be expected to
create a hostile environment''). In evaluating whether there is a
hostile environment, courts have reiterated that recipients must adopt
a `` `totality of the circumstances' approach that rejects the
disaggregation of the allegations and requires only that the alleged
incidents cumulatively have resulted in the creation of a hostile
environment.'' Crandell, 87 F. Supp. 2d at 319.
In the circumstances in which sex-based harassment occurs outside a
recipient's education program or activity or outside the United States,
and the harassment does not contribute to a hostile environment within
the recipient's education program or activity, proposed Sec. 106.11
would clarify that Title IX does not apply. For example, Student C
reports she was sexually assaulted in a nightclub off campus by a third
party who does not live in the area. Student C is now experiencing
emotional distress and is unable to attend classes. Because the assault
occurred off campus, and the respondent is not a representative of the
recipient or otherwise a person over whom the recipient exercises
disciplinary authority, the assault did not occur within the
recipient's education program or activity. And because Student C is not
alleging a hostile environment within the education program or activity
due to the respondent's presence or additional harassment she is
experiencing, proposed Sec. 106.11 clarifies that a recipient's Title
IX obligations would not be implicated. The recipient would still be
encouraged to provide supportive measures to Student C and refer
Student C to local law enforcement.
Finally, the proposed regulations would also recognize that when
sex discrimination other than sex-based harassment occurs outside of a
recipient's education program or activity, or outside of the United
States, but causes sex discrimination within the recipient's education
program or activity, Title IX would require the recipient to address
this sex discrimination as well. For example, a student in a
recipient's study abroad program complains that he was
[[Page 41404]]
subjected to different treatment in grading based on sex by a professor
and, as a result, the student lost his scholarship. Under proposed
Sec. 106.11, the recipient would be required to address the complaint
because, although the different treatment in grading occurred outside
of the United States, that conduct caused discrimination based on sex
in the recipient's education program in the United States. This
response would include compliance with applicable grievance procedures,
including investigating the complaint, and, if discrimination is found,
taking steps to remedy the resulting discrimination. For instance, the
recipient may remove the discriminatory grade from the student's
transcript and reinstate the scholarship. In addition, there may be
circumstances in which the recipient itself is alleged to have engaged
in sex discrimination in its program outside the United States. When
such conduct causes sex discrimination in its education program or
activity within the United States, the recipient must address it.
D. The Effect of Other Requirements and Preservation of Rights
Section 106.6(e) Effect of Section 444 of General Education Provisions
Act (GEPA)/Family Educational Rights and Privacy Act (FERPA)
Current regulations: Current Sec. 106.6(e) states that the
obligation to comply with the regulations in part 106 is not obviated
or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA
regulations, 34 CFR part 99.
Proposed regulations: No proposed change.
Reasons: The Family Educational Rights and Privacy Act (FERPA)
protects the privacy of students' education records and personally
identifiable information contained therein. Privacy is an important
factor that the Department carefully considered in promulgating the
proposed regulations and recipients will need to consider this factor
in implementing them.
To the extent that there may be circumstances in which a conflict
exists between a recipient's obligations under Title IX and under
FERPA, the Department would maintain the provision in Sec. 106.6(e)
that expressly states that the obligation to comply with the Title IX
regulations is not obviated or alleviated by the FERPA statute or
regulations. 85 FR 30424. As the General Education Provisions Act
(GEPA) provides, nothing in that statute shall be construed to ``affect
the applicability of title VI of the Civil Rights Act of 1964 [42
U.S.C. 2000d et seq.], title IX of the Education Amendments of 1972 [20
U.S.C. 1681 et seq.], title V of the Rehabilitation Act of 1973 [29
U.S.C. 791 et seq.], the Age Discrimination Act [42 U.S.C. 6101 et
seq.], or other statutes prohibiting discrimination, to any applicable
program.'' 20 U.S.C. 1221(d). The Department has long interpreted this
provision to mean that ``FERPA continues to apply in the context of
Title IX enforcement, but if there is a direct conflict between the
requirements of FERPA and the requirements of Title IX, such that
enforcement of FERPA would interfere with the primary purpose of Title
IX to eliminate sex-based discrimination in schools, the requirements
of Title IX override any conflicting FERPA provisions.'' 85 FR 30424.
Some aspects of the proposed regulations address areas in which
recipients may also have obligations under FERPA or its implementing
regulations, 34 CFR part 99, for example, provisions regarding the
exercise of rights by parents, guardians, or other authorized legal
representatives at proposed Sec. 106.6(g); disclosure of supportive
measures at proposed Sec. 106.44(g)(5); consolidation of complaints at
proposed Sec. 106.45(e); a description of the relevant evidence at
proposed Sec. 106.45(f)(4); access to an investigative report or
relevant and not otherwise impermissible evidence at proposed Sec.
106.46(e)(6); and notification of the determination of a sex
discrimination complaint at proposed Sec. Sec. 106.45(h)(2) and
106.46(h)(1). The Department is seeking comments on the intersection
between the proposed Title IX regulations and FERPA, any challenges
that recipients may face as a result of the intersection between the
two laws, and any steps the Department might take to address those
challenges in the Title IX regulations.
Section 106.6(g) Exercise of Rights by Parents, Guardians, or Other
Authorized Legal Representatives
Current regulations: Section 106.6(g) states that the Department's
Title IX regulations must not be read in derogation of any legal right
of a parent or guardian to act on behalf of a complainant, respondent,
party, or other individual, subject to the obligation to comply with
the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g. This
right to act on behalf of another includes but is not limited to,
filing a formal complaint.
Proposed regulations: The Department proposes clarifying in this
section that an authorized legal representative has the right to act on
behalf of a complainant, respondent, or other person, subject to
proposed Sec. 106.6(e), including but not limited to making a
complaint through the recipient's grievance procedures for complaints
of sex discrimination, as would a parent or guardian.
Reasons: Upon reexamining this provision, the Department proposes
adding to the current regulations the term ``authorized legal
representative'' to fill a gap in the existing regulations that was
brought to the Department's attention in listening sessions with a wide
array of stakeholders, including students, parents, educators, school
officials, and advocacy organizations. Throughout the United States, an
individual in the role of an educational representative or another
similar role is legally authorized to act on behalf of certain youth in
out-of-home care but is not necessarily deemed a parent or guardian.
The Department proposes adding the term ``authorized legal
representative'' to Sec. 106.6(g), recognizing that although
terminology may differ across States and contexts, there is a critical
need to empower these individuals to act on behalf of another person,
consistent with their legal authority, in matters addressed by the
proposed regulations.
Section 106.6(h) and 106.6(b) Preemptive Effect
Current regulations: Section 106.6(h) states that, to the extent
there is any conflict between State or local law and the Title IX
regulations at Sec. Sec. 106.30, 106.44, and 106.45, the obligation to
comply with those sections is not obviated or alleviated by any State
or local law. Current Sec. 106.6(b) states that the obligation to
comply with part 106 is not obviated or alleviated by any State or
local law or other requirement which would render any applicant or
student ineligible, or limit the eligibility of any applicant or
student, on the basis of sex, to practice any occupation or profession.
Proposed regulations: The Department proposes eliminating Sec.
106.6(h) entirely and simplifying Sec. 106.6(b) to make clear that all
of the Title IX regulations would preempt State or local law. Proposed
Sec. 106.6(b) states that a recipient's obligation to comply with part
106 is not obviated or alleviated by any State or local law or other
requirement, and that nothing in the Department's regulations would
preempt a State or local law that does not conflict with these
regulations and that provides greater protections against sex
discrimination.
Reasons: The Department wants to ensure recipients understand that
their
[[Page 41405]]
obligations to comply with the Department's Title IX regulations are
not dependent or conditioned on other obligations recipients may be
subject to in their respective States or localities. Current Sec.
106.6(b) states that this preemptive effect applies only with respect
to ``any State or local law or other requirement which would render any
applicant or student ineligible, or limit the eligibility of any
applicant or student, on the basis of sex, to practice any occupation
or profession.'' The Department wants to ensure that recipients are
aware that the preemptive effect of these regulations are not just
limited to the circumstances listed in Sec. 106.6(b), nor the
provisions specifically excerpted in Sec. 106.6(h). The proposed
regulations would delete the language limiting the provision to
eligibility to practice any occupation or profession, making clear in a
simple comprehensive statement that the Title IX regulations preempt
any State or local law with which there is a conflict. The proposed
change would also avoid the duplication that may exist under separate
but overlapping provisions.
In addition, proposed Sec. 106.6(b) would clarify that nothing in
the Department's proposed regulations would preempt a State or local
law that provides greater protections to students and does not conflict
with these regulations. This clarification would ensure that the
proposed regulations appropriately cover the full scope of Title IX
while not extending further than the Department's authority to
promulgate regulations to effectuate Title IX.
E. Procedures
Section 106.81 Procedures
Current regulations: Section 106.81 provides that the procedural
provisions applicable to Title VI of the Civil Rights Act of 1964 are
adopted and incorporated into the Title IX regulations. Current Sec.
106.81 states that these procedures may be found at 34 CFR 100.6
through 100.11 and 34 CFR part 101. Finally, current Sec. 106.81
states that the definitions in current Sec. 106.30 do not apply to 34
CFR 100.6 through 100.11 and 34 CFR part 101.
Proposed regulations: The Department proposes removing the final
sentence of current Sec. 106.81, which states that the definitions in
current Sec. 106.30 do not apply to 34 CFR 100.6 through 100.11 and 34
CFR part 101.
Reasons: As explained in greater detail in the discussion of
Definitions in the Provisions of General Applicability (Section I.B),
the Department proposes removing current Sec. 106.30 in its entirety.
Accordingly, the Department also proposes removing the statement that
the definitions in current Sec. 106.30 do not apply to the Title VI
regulations.
II. Recipient's Obligation to Operate Its Education Program or Activity
Free From Sex Discrimination
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). The Department has the authority to regulate with
regard to discrimination on the basis of sex in education programs or
activities receiving Federal financial assistance, specifically under
20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474.
A. Sex Discrimination Generally
As discussed in the Background section, the Supreme Court explained
in Cannon that the objectives of Title IX are two-fold: first, to
``avoid the use of federal resources to support discriminatory
practices,'' and second, to ``provide individual citizens effective
protection against those practices.'' 441 U.S. at 704. The Court also
clarified the broad scope of Title IX in North Haven Board of
Education, stating: ``[I]f we are to give Title IX the scope that its
origins dictate, we must accord it a sweep as broad as its language.''
456 U.S. at 521 (citations and internal alterations omitted).
These cases, together with the text of Title IX, make clear that
Title IX's prohibition on sex discrimination imposes a legal duty on
every covered recipient of Federal funds to operate its education
program or activity free from sex discrimination. This legal duty
accordingly requires a recipient to respond promptly and equitably when
sex discrimination may be taking place within its education program or
activity.
B. Sex-Based Harassment
1. OCR's Guidance and Supreme Court Precedent on Title IX's Application
to Sexual Harassment
The Supreme Court and the Department have long interpreted Title IX
to prohibit sexual harassment. In 1981, OCR Director for Litigation,
Enforcement and Policy Service Antonio J. Califa issued a policy
memorandum to all OCR regional directors advising them that ``[s]exual
harassment consists of verbal or physical conduct of a sexual nature,
imposed on the basis of sex, by an employee or agent of a recipient
that denies, limits, provides different, or conditions the provision of
aid, benefits, services or treatment protected under Title IX.'' See
1988 Sexual Harassment Pamphlet at 2 (quoting OCR Policy Memorandum,
Aug. 31, 1981, from Antonio J. Califa, Director for Litigation,
Enforcement and Policy Service, OCR to Regional Civil Rights
Directors), https://files.eric.ed.gov/fulltext/ED330265.pdf. Then in
1988, OCR issued a pamphlet titled Sexual Harassment: It's Not
Academic, which characterized the 1981 memorandum as having
``reaffirmed'' OCR's jurisdiction: ``In an August 1981 policy
memorandum, the Office for Civil Rights (OCR) of the U.S. Department of
Education reaffirmed its jurisdiction over sexual harassment complaints
under Title IX . . . .'' Id.
The Supreme Court addressed Title IX's coverage of sexual
harassment for the first time in 1992, when it confirmed that a school
district could be held liable for monetary damages in cases involving a
teacher sexually harassing a student. Franklin, 503 U.S. 60. The Court
noted that prior to filing her lawsuit, the plaintiff filed a complaint
with OCR in August 1988 in which OCR concluded that the school district
violated Franklin's Title IX rights by subjecting her to sexual
harassment and by interfering with her right to complain. Id. at 64
n.3. By allowing monetary damages as a remedy, the Court signaled
approval for more robust enforcement of Title IX to cover sexual
harassment. See id. at 76 (``[I]n this case the equitable remedies
suggested by respondent and the Federal Government are clearly
inadequate.'').
Following Franklin and beginning in 1997, OCR issued a series of
documents to provide additional guidance to recipients, students, and
others regarding Title IX's prohibition on sexual harassment. See,
e.g., 1997 Sexual Harassment Guidance; 2001 Revised Sexual Harassment
Guidance; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague
Letter from Assistant Secretary Stephanie Monroe on Sexual Harassment
(Jan. 25, 2006) (rescinded upon effective date of 2020 amendments, Aug.
14, 2020) https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague
Letter: Sexual Violence (Apr. 4, 2011) (rescinded in 2017) (2011 Dear
Colleague Letter on Sexual Violence), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; 2014 Q&A on Sexual
Violence; U.S. Dep't of Educ., Office for Civil Rights, Q&A on Campus
Sexual Misconduct (Sept. 22, 2017) (rescinded in 2020) (2017 Q&A on
[[Page 41406]]
Campus Sexual Misconduct), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.
OCR published the 1997 Sexual Harassment Guidance in the Federal
Register for public comment after ``extensive consultation with
interested parties,'' including ``students, teachers, school
administrators, and researchers.'' 1997 Sexual Harassment Guidance, 62
FR 12035. OCR set out the circumstances under which sexual harassment
of students is a form of prohibited discrimination under Title IX,
explaining that sexual harassment occurs when ``a school employee
explicitly or implicitly conditions a student's participation in an
education program or activity or bases an educational decision on the
student's submission to unwelcome sexual [conduct].'' Id. at 12038. OCR
further explained that under Title IX, hostile environment harassment
requires that the sexually harassing conduct be ``sufficiently severe,
persistent or pervasive to limit a student's ability to participate in
or benefit from an education program or activity, or to create a
hostile or abusive educational environment.'' Id. OCR also discussed
what constitutes notice of sexual harassment of students by its
employees, students, or third parties and how a school should respond
upon receiving notice of sexual harassment. Id. at 12039, 12042-43. OCR
rooted this interpretation in Supreme Court precedent and well-
established legal principles under Title IX, as well as the related
nondiscrimination provisions of Titles VI and VII of the Civil Rights
Act of 1964. Id. at 12034.
In 1998, the Supreme Court held in Gebser that a school district
may be liable for monetary damages if a teacher sexually harasses a
student, an official who has the authority to address the harassment
has actual knowledge of the harassment, and that official is
deliberately indifferent in responding to the harassment. 524 U.S. at
277. The following year, the Court held in Davis that a school district
also may be liable for monetary damages if the school has actual
knowledge of student-on-student harassment in its programs or
activities, it responds with deliberate indifference, and the
harassment is sufficiently severe, pervasive, and objectively offensive
that it effectively bars the student's access to an educational
opportunity or benefit. 526 U.S. at 650.
The Court specifically and repeatedly stated that the liability
standards for sexual harassment established in Gebser and Davis were
required in private actions for monetary damages. Gebser, 524 U.S. at
283 (``In this case, moreover, petitioners seek not just to establish a
Title IX violation but to recover damages based on theories of
respondeat superior and constructive notice. It is that aspect of their
action, in our view, that is most critical to resolving the case.''
(emphasis in original)); Davis, 526 U.S. at 639 (affirming that Title
IX's coverage of student-on-student harassment was not in dispute and
instead that ``at issue here is the question whether a recipient of
federal education funding may be liable for damages under Title IX
under any circumstances for discrimination in the form of student-on-
student sexual harassment''); see also Davis, 526 U.S. at 633, 641-44,
649-53; Gebser, 524 U.S. at 287-88.
In particular, in setting the damages liability standards for
recipients, the Court was concerned about the possibility of requiring
a school to pay money damages for harassment of which it was not aware
and in amounts that exceeded the recipient's level of Federal funding.
Gebser, 524 U.S. 289-90. At the same time, the Court acknowledged the
authority of Federal agencies, such as the Department, to ``promulgate
and enforce requirements that effectuate [Title IX's] nondiscrimination
mandate,'' even in circumstances that would not give rise to a claim
for monetary damages. Id. at 292. The Court noted that ``the Department
of Education could enforce the requirement administratively'' that a
school ``promulgate a grievance procedure'' even though the failure to
do so ``does not itself constitute `discrimination' under Title IX.''
Id. Similarly, the Court has explained that the Department may require
schools to sign assurances of compliance under Title IX, even though
the failure to sign such assurances would not itself constitute sex
discrimination by the recipient. See Grove City Coll., 465 U.S. at 574.
Following the Gebser decision, the Department informed school
superintendents and college and university presidents that the Court's
decision did not change a school's obligation to take reasonable steps
to prevent and eliminate sexual harassment as a condition of their
receipt of Federal funding. See U.S. Dep't of Educ., Letter from
Secretary Richard W. Riley to Superintendents of Schools (Aug. 31,
1998), https://www2.ed.gov/offices/OCR/archives/pdf/AppC.pdf; U.S.
Dep't of Educ., Letter from Secretary Richard W. Riley to College and
University Presidents (Jan. 28, 1999), https://www2.ed.gov/News/Letters/990128.html. In 2000, OCR explained in its notice and request
for comments on the proposed Revised Sexual Harassment Guidance that
although ``[i]n most important respects, the substance of the 1997
Guidance was reaffirmed in the Court's opinions in Gebser and Davis,
[the Department] determined that in certain areas the 1997 Guidance
could be strengthened by further clarification and explanation of the
regulatory basis for the guidance.'' U.S. Dep't of Educ., Office for
Civil Rights, Request for Comments, Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third
Parties 65 FR 66092 (Nov. 2, 2000) (Request for Comments on the 2001
Revised Sexual Harassment Guidance), https://www.govinfo.gov/content/pkg/FR-2000-11-02/pdf/00-27910.pdf. See also U.S. Dep't of Educ.,
Office for Civil Rights, Notice of Availability, Revised Sexual
Harassment Guidance, 66 FR 5512 (Jan. 19, 2001), https://www.govinfo.gov/content/pkg/FR-2001-01-19/pdf/01-1606.pdf.
The 2001 Revised Sexual Harassment Guidance did not change the
standards that OCR used to determine when prohibited sexual harassment
has occurred. Request for Comments on the 2001 Revised Sexual
Harassment Guidance, 65 FR 66093. Rather, OCR clarified that ``these
standards apply to our ability to find a violation and seek corrective
action in administrative enforcement of Title IX.'' Id. OCR explained
that ``the focus of the guidance is on a school's administrative
responsibilities under the nondiscrimination requirements of the Title
IX statute and regulations'' to take effective action to prevent,
eliminate, and remedy sexual harassment occurring in its programs or
activities, rather than its liability for money damages in private
lawsuits. Id. When the revised guidance was issued, it noted that
``commenters uniformly agreed with OCR that the Court limited the
liability standards established in Gebser and Davis to private actions
for monetary damages'' and ``that the administrative enforcement
standards reflected in the 1997 Guidance remain valid in OCR
enforcement actions.'' 2001 Revised Sexual Harassment Guidance at iv,
vi (``[B]oth Davis and the Department tell schools to look at the
`constellation of the surrounding circumstances, expectations, and
relationships' (526 U.S. at 651 (citing Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 82 (1998)), and the Davis Court cited
approvingly to the underlying core factors described in the 1997
Guidance for evaluating the context of the harassment.''). Finally,
[[Page 41407]]
OCR explained that ``[w]hile Gebser and Davis made clear that Title VII
agency principles do not apply in determining liability for money
damages under Title IX, the Davis court also indicated, through its
specific references to Title VII caselaw, that Title VII remains
relevant in determining what constitutes hostile environment sexual
harassment under Title IX.'' Id. at vi.
As noted above, OCR issued subsequent guidance documents on
harassment on the basis of sex, including sexual harassment, that built
on the concepts from the 1997 Sexual Harassment Guidance and the 2001
Revised Sexual Harassment Guidance. See U.S. Dep't of Educ., Office for
Civil Rights, Dear Colleague Letter: Harassment and Bullying (Oct. 26,
2010) (2010 Dear Colleague Letter on Harassment and Bullying), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf; 2011
Dear Colleague Letter on Sexual Violence; 2014 Q&A on Sexual Violence;
2017 Q&A on Campus Sexual Misconduct. OCR issued these guidance
documents to assist recipients in meeting their obligations and to
provide the public with information about their rights under the Title
IX statute and regulations. These guidance documents provided
information and examples to inform recipients about how OCR evaluates
compliance with Title IX.
2. The 2020 Amendments' Framework for Addressing Sexual Harassment
Under Title IX
On November 29, 2018, the Department published a notice of proposed
rulemaking to clarify and modify the Title IX regulations. 2018 NPRM.
In response to the 2018 NPRM, the Department received more than 124,000
comments expressing a wide variety of views on the proposed
regulations. On May 19, 2020, the Department published the 2020
amendments to the Title IX regulations, which went into effect on
August 14, 2020. 85 FR 30026.
In the preamble to the 2020 amendments, the Department explained
that ``[n]either Gebser nor Davis opined as to what the appropriate
conditions (e.g., definition of sexual harassment, actual knowledge)
and liability standard (e.g., deliberate indifference) must or should
be for the Department's administrative enforcement.'' Id. at 30033. The
Department recognized its flexibility to depart from the standards and
conditions articulated in Gebser and Davis, explaining that the
``Department has regulatory authority to select conditions and a
liability standard different from those used in the Gebser/Davis
framework, because the Department has authority to issue rules that
require recipients to take administrative actions to effectuate Title
IX's non-discrimination mandate.'' Id.
Notwithstanding this recognition of its distinct administrative
authority to enforce Title IX, in the 2020 amendments the Department
chose to use the Gebser/Davis framework as the starting point for
describing a recipient's legal obligation to address sexual harassment
under Title IX, departing in many respects from OCR's prior
longstanding guidance that had been developed to ensure a recipient's
implementation of Title IX's protections. The Department also stated
that it was using Title IX's ``statutory authority to issue rules to
effectuate the purpose of Title IX,'' to ``reasonably expand[ ]''
aspects of that ``framework to further the purposes of Title IX in the
context of administrative enforcement, holding schools responsible for
taking more actions than what the Gebser/Davis framework requires.''
Id. at 30033, 30035.
After extensive review, the Department's current view is that the
2020 amendments do not adequately promote full implementation of Title
IX's prohibition on sex discrimination, including sex-based harassment,
by a recipient in its education program or activity. For example, the
2020 amendments do not require a postsecondary institution to
investigate sexual harassment in its education program or activity,
even if its leadership has persuasive evidence that harassment is
taking place, unless the person who experienced the harassment (i.e.,
the complainant) reported the harassment in writing to a specifically
designated employee. As a result, a complainant who does not report the
harassment to the correct individual may be denied access to an
educational environment free from sex discrimination, and the recipient
may be discriminating based on sex in operating its program or
activity. Also, stakeholders reported that certain requirements of the
2020 amendments have resulted in decreased reporting of sexual
harassment and may have impeded recipients from responding promptly and
equitably to allegations of sexual harassment in its educational
environment. The Department's current view is that it is necessary to
amend its Title IX regulations to clarify a recipient's obligation to
take prompt and effective action to end all sex-based harassment, to
help ensure that Title IX's protections are fully enforced, and to
avoid recipients' use of Federal funds to support discriminatory
practices.
C. Revised Definitions
Section 106.2 Definition of ``Complainant''
Current regulations: Section 106.30 defines ``complainant'' as ``an
individual who is alleged to be the victim of conduct that could
constitute sexual harassment.''
Proposed regulations: The Department proposes moving the definition
of ``complainant'' to Sec. 106.2, referring to ``sex discrimination''
rather than ``sexual harassment,'' and removing the term ``victim.''
The Department also proposes adding language stating that a third-party
complainant (i.e., a person other than a student or employee) must be
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred.
Reasons: The Department proposes that ``complainant'' encompass
anyone who is alleged to have been subjected to conduct that could
constitute sex discrimination under Title IX. The Department also
proposes removing the current definition's reference to the complainant
as a ``victim'' as the term could be perceived as stigmatizing or
pejorative.
The Department recognizes in proposed Sec. 106.6(g) that a parent,
guardian, or other authorized legal representative may have a legal
right to act on behalf of a complainant, including by making a
complaint of sex discrimination. This approach is consistent with
current Sec. 106.6(g), which states that the Title IX regulations must
not be ``read in derogation of any legal right of a parent or
guardian'' to act on behalf of a complainant, including by filing a
formal complaint. The Department stated in the preamble to the 2020
amendments that ``when a party is a minor or has a guardian appointed,
the party's parent or guardian may have the legal right to act on
behalf of the party,'' although the minor or person with an appointed
guardian would be the party (i.e., the complainant). 85 FR 30453. As
explained in the preamble to the 2020 amendments, ``the parent or
guardian must be permitted to exercise the rights granted to the party
. . . whether such rights involve requesting supportive measures or
participating in a grievance process.'' Id. The Department further
explained in the preamble to the 2020 amendments that ``the parent or
guardian must be permitted to accompany the student to meetings,
interviews, and hearings during a grievance process to exercise rights
on behalf of the student, while the
[[Page 41408]]
student's advisor of choice may be a different person from the parent
or guardian.'' Id. As explained in the discussion of proposed Sec.
106.6(g), the Department has received feedback that a reference to
parents and guardians is underinclusive because it does not recognize
the rights of individuals who are legally authorized to act on behalf
of children in out-of-home care. As a result, the Department proposes
adding the phrase ``other authorized legal representative'' in proposed
Sec. 106.6(g). Under proposed Sec. 106.6(g), a parent, guardian, or
other authorized legal representative may have a legal right to act on
a student's behalf, including by making a complaint on behalf of a
complainant; however, the student would remain the complainant.
The current regulations restrict the persons who can make a
complaint under the recipient's grievance procedures for complaints of
sex discrimination other than sexual harassment to students and
employees. 34 CFR 106.8(c). The current regulations permit any
complainant, including a student, employee, or third party who was
participating or attempting to participate in the recipient's education
program or activity at the time of filing, to file a formal complaint
alleging sexual harassment. 34 CFR 106.30(a) (definition of
``complainant'' and ``formal complaint''). After considering the issue,
the Department's current view is that a third party who was
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred should
be permitted to make a complaint of sex discrimination, including sex-
based harassment, under the recipient's grievance procedures as
addressed in proposed Sec. 106.45(a)(2). This would be unlike the
current regulations, which consider the complainant's participation in
the education program or activity at the time of filing the formal
complaint. In addition, although the current regulations' limits on who
can file a formal complaint address only complaints of sexual
harassment, the proposed regulations would address all complaints of
sex discrimination, including sex-based harassment. This proposal is
consistent with the decision by the U.S. Court of Appeals for the First
Circuit in Doe v. Brown University, 896 F.3d 127, 132-33 (1st Cir.
2018), which found that the scope of Title IX's ``subject to
discrimination under'' language is ``circumscribed to persons who
experience discriminatory treatment while participating, or at least
attempting to participate, in education programs or activities''
provided by the recipient. Id. (upholding district court's dismissal of
Title IX claim by third party who was sexually assaulted on recipient's
campus but was not participating or attempting to participate in the
recipient's education program or activity). Examples of possible third-
party complainants include a prospective student, a visiting student-
athlete, or a guest speaker who is participating or attempting to
participate in the recipient's education program or activity. This
third-party participation requirement would not apply to a student,
employee, or those persons authorized to act on behalf of a
complainant, respondent, or other person under proposed Sec. 106.6(g).
Section 106.2 Definition of ``Complaint''
Current regulations: The current regulations do not define
``complaint.'' However, current Sec. 106.30 defines ``formal
complaint'' as a document or electronic submission that contains the
complainant's signature or otherwise indicates that the complainant is
the person filing the formal complaint; alleges sexual harassment
against a respondent; and requests that the recipient investigate the
allegation of sexual harassment under its grievance process for formal
complaints of sexual harassment in Sec. 106.45. A formal complaint is
filed by a complainant with the Title IX Coordinator or signed by the
Title IX Coordinator. The current regulations provide several methods
for filing the formal complaint, including in person, by mail, or by
email. The current regulations specify that when the Title IX
Coordinator signs a formal complaint, the Title IX Coordinator is not a
complainant or otherwise a party under part 106 or under Sec. 106.45,
and must comply with the requirements of part 106, including Sec.
106.45(b)(1)(iii).
Current Sec. 106.8(c) requires that a recipient provide
notification of its grievance procedures, including how to report or
file a complaint of sex discrimination, to the following: applicants
for admission and employment; students; parents or legal guardians of
elementary and secondary school students; employees; and all unions and
professional organizations holding collective bargaining or
professional agreements with the recipient.
Proposed regulations: The Department proposes defining
``complaint'' to cover complaints of any type of sex discrimination and
not limiting ``complaint'' to a written request. Specifically, the
Department proposes removing the definition of ``formal complaint,''
which is limited to a document requesting that the recipient initiate
its grievance process under current Sec. 106.45, and replacing it with
a definition of ``complaint'' that is an oral or written request to the
recipient to initiate the recipient's grievance procedures for sex
discrimination under Sec. 106.45, and if applicable Sec. 106.46. The
Department proposes moving the definition of ``complaint'' to Sec.
106.2 because its applicability is not limited to sex-based harassment.
The proposed definition would clarify that a complaint may be oral
or written. The proposed regulations would remove the requirement that
the formal complaint contain the complainant's physical or digital
signature, or otherwise indicate that the complainant is the person
filing the formal complaint.
The proposed definition of ``complaint'' would not specify who can
make a complaint, but this information would be specified in proposed
Sec. 106.45(a)(2). As explained in the discussion of proposed Sec.
106.45(a)(2), the Department proposes placing limitations on who may
make a complaint of sex-based harassment that obligates a recipient to
initiate its grievance procedures due to the nature of those
allegations. However, the Department does not propose placing any
limitations on who can provide information to the Title IX Coordinator
about conduct that may constitute sex discrimination under Title IX,
including sex-based harassment. When a Title IX Coordinator is notified
about conduct that may constitute sex discrimination under Title IX,
including sex-based harassment, they would be required to act under
proposed Sec. 106.44.
Reasons: The Department proposes defining ``complaint'' to provide
clarity for how an individual can request that a recipient initiate its
grievance procedures under proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, for all types of sex discrimination prohibited
by Title IX.
The current regulations do not provide information about how an
individual could request that a recipient initiate its grievance
procedures in response to sex discrimination other than sexual
harassment. First, the current definition of ``formal complaint''
applies only to sexual harassment. Second, although current Sec.
106.8(c) requires a recipient to notify individuals of how to make a
complaint, the Department did not define the term ``complaint'' or
specify that a complaint is a request to the recipient to initiate its
grievance procedures. The current regulations have different
requirements
[[Page 41409]]
for complaints of sexual harassment and complaints of other forms of
sex discrimination under Title IX and require a formal written document
to request that the recipient initiate its grievance procedures in
response only to sexual harassment. Specifically, current Sec. 106.30
requires a formal written document to request that the recipient
initiate its grievance procedures under Sec. 106.45 with respect to
allegations of sexual harassment but does not require a formal written
document to request that the recipient initiate its grievance
procedures under Sec. 106.8(c) with respect to allegations of other
forms of sex discrimination. In the preamble to the 2020 amendments,
the Department explained that a formal written document was important
to avoid confusion in initiating a recipient's grievance procedures
under Sec. 106.45. See 85 FR 30130.
OCR received feedback from stakeholders during the June 2021 Title
IX Public Hearing, listening sessions, and the meetings held in 2022
under Executive Order 12866 that expressed concerns that the 2020
amendments created an onerous and cumbersome process for a complainant
seeking to request that the recipient initiate its grievance procedures
and requesting that the Department streamline the complaint process.
Although the current regulations permit a complainant to file a formal
complaint by email and using a digital signature, see 85 FR 30133,
several stakeholders stated that the signature and writing requirements
generally discouraged individuals from making complaints.
Based on the feedback received from stakeholders and the current
distinction between a complaint of sex discrimination and a formal
complaint of sexual harassment, the Department is concerned that the
current regulations may have created a barrier for potential
complainants to effectively assert their rights under Title IX. It is
the Department's current view that additional clarity is needed to
ensure that recipients are aware of and can respond appropriately to
sex discrimination in their education programs or activities.
The Department proposes creating a single process to receive these
requests by replacing the definition of ``formal complaint'' with a
definition of ``complaint'' to clarify that a complaint would be the
mechanism by which an individual may request that a recipient initiate
its grievance procedures in response to all forms of sex
discrimination. The Department's proposed regulations would define
``complaint'' more broadly to include either an oral or a written
request to the recipient to initiate the recipient's grievance
procedures for complaints of sex discrimination under Title IX, as
described in proposed Sec. 106.45, and if applicable proposed Sec.
106.46. This revised definition of ``complaint'' would recognize that a
person may seek to make a complaint in a variety of ways and would
allow both oral and written complaints, while also no longer requiring
a signature.
The proposed regulations would also differ from the current
regulations in that they would not require a complaint to be made to
the Title IX Coordinator, or to any specific employee of the recipient;
a complaint need only be made to the recipient. As explained in greater
detail in the discussion of proposed Sec. 106.44(c), the proposed
regulations would require a recipient to ensure that its Title IX
Coordinator is notified of information about conduct that may
constitute sex discrimination under Title IX in the recipient's
education program or activity when that information is provided to
certain categories of employees. The proposed regulations would also
require other categories of employees to, at a minimum, provide the
Title IX Coordinator's contact information and information about how to
report sex discrimination to any person who provides the employee with
information about conduct that may constitute sex discrimination under
Title IX. As explained in greater detail in the discussion of proposed
Sec. 106.44(f), the proposed regulations would also require a
recipient's Title IX Coordinator to take certain steps upon being
notified of conduct that may constitute sex discrimination under Title
IX. In addition, as explained in greater detail in the discussion of
proposed Sec. 106.44(k), a complaint would no longer be required
before a recipient could offer to a complainant and respondent its
informal resolution process under proposed Sec. 106.44(k); instead,
the informal resolution process could be offered and, if accepted,
initiated by the recipient when it receives information about conduct
that may constitute sex discrimination under Title IX even when no
complaint is made.
Third-party complaints. The current regulations require a
complainant to be participating or attempting to participate in the
recipient's education program or activity at the time of filing a
formal complaint of sexual harassment. 34 CFR 106.30(a) (definition of
``formal complaint''). In adding that requirement to the 2020
amendments, the Department explained that ``there is no requirement
that [a] complainant must be a student, employee, or [have some] other
designated relationship with the recipient in order to be treated as a
`complainant' entitled to a prompt, non-deliberately indifferent
response from the recipient,'' but that the participation limitation on
when a complainant can file a formal complaint of sexual harassment
``prevents recipients from being legally obligated to investigate
allegations made by complainants who have no relationship with the
recipient.'' 85 FR 30138, 30198. The Department also provided examples
of situations in which a complainant would be attempting to participate
in a recipient's education program or activity. See id. at 30138, 30198
n.869, 30219. The current regulations do not address third-party
complainants or include a participation requirement with respect to
complaints of sex discrimination other than sexual harassment; instead,
the current regulations state that grievance procedures that address
other forms of sex discrimination apply to student and employee
complaints. 34 CFR 106.8(c).
OCR heard from several stakeholders during the June 2021 Title IX
Public Hearing, listening sessions, and the meetings held in 2022 under
Executive Order 12866 who requested either reconsideration of the scope
of who is deemed to be attempting to participate in the recipient's
education program or activity or eliminating the requirement that a
complainant must be participating or attempting to participate in the
recipient's education program or activity. The Department also
considered that such a requirement may be redundant as applied to
employee and student complainants who are, based on their enrollment or
employment, either participating or attempting to participate in the
recipient's education program or activity. After considering an array
of stakeholder views and reevaluating the issue, the Department
proposes eliminating this requirement for making a complaint of sex
discrimination, including sex-based harassment, with respect to a
student or employee complainant.
In proposed Sec. 106.45(a)(2), the Department would specify who
can make a complaint requesting that the recipient initiate its
grievance procedures. Under proposed Sec. 106.45(a)(2)(iv), a third
party must be participating in or attempting to participate in the
recipient's education program or activity in order to make a complaint
requesting that the recipient initiate grievance procedures. The
[[Page 41410]]
Department's proposed regulations seek to ensure that anyone who is
participating or attempting to participate in a recipient's program or
activity is able to make a complaint of sex discrimination while being
cognizant of the possible increased burden for a recipient based on
complaints made by third parties who are not participating or
attempting to participate in the recipient's education program or
activity. The Department's proposed regulations would also shift the
focus from whether the third party was participating or attempting to
participate in the recipient's education program or activity at the
time the complaint was filed to whether the third party was
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred. For
example, under the proposed regulations, the visiting student-athlete
who was sexually harassed by a student of the recipient during an
intercollegiate swim meet would be considered to be participating in
the recipient's education program or activity at the time of the
alleged sex-based harassment. In contrast, and also under the proposed
regulations, if the same visiting student-athlete was sexually harassed
by one of the recipient's students at an off-campus bar days after the
swim meet concluded, the visiting student-athlete would not be
considered to be participating or attempting to participate in the
recipient's education program or activity at the time that the alleged
sex-based harassment occurred. The Department's tentative view is that
the proposed regulations would be more aligned with the purpose of
Title IX to ensure that a recipient operates its education program or
activity free from sex discrimination.
Section 106.2 Definition of Prohibited ``Sex-Based Harassment''
Current regulations: Section 106.30(a) defines ``sexual
harassment'' as conduct on the basis of sex that satisfies one or more
of the following: (1) an employee of the recipient conditioning the
provision of an aid, benefit, or service of the recipient on an
individual's participation in unwelcome sexual conduct; (2) unwelcome
conduct determined by a reasonable person to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal
access to the recipient's education program or activity; or (3)
``sexual assault'' as defined in 20 U.S.C. 1092(f)(6)(A)(v), ``dating
violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic violence''
as defined in 34 U.S.C. 12291(a)(8), or ``stalking'' as defined in 34
U.S.C. 12291(a)(30).
Proposed regulations: The Department proposes moving the definition
from Sec. 106.30(a) to Sec. 106.2 and clarifying that the definition
covers all forms of sex-based harassment, as opposed to only sexual
harassment. The proposed new definition of ``sex-based harassment''
would clarify that it covers sexual harassment, harassment on the bases
described in proposed Sec. 106.10, and other conduct on the basis of
sex that is in one or more of the following categories: (1) an
employee, agent, or other person authorized by the recipient to provide
an aid, benefit, or service under the recipient's education program or
activity explicitly or implicitly conditioning the provision of such an
aid, benefit, or service on a person's participation in unwelcome
sexual conduct; (2) unwelcome sex-based conduct that is sufficiently
severe or pervasive, that, based on the totality of the circumstances
and evaluated subjectively and objectively, denies or limits a person's
ability to participate in or benefit from the recipient's education
program or activity (i.e., creates a hostile environment); or (3)(i)
``sexual assault'' meaning an offense classified as a forcible or
nonforcible sex offense under the uniform crime reporting system of the
Federal Bureau of Investigation; (ii) ``dating violence'' meaning
violence committed by a person who is or has been in a social
relationship of a romantic or intimate nature with the victim; (iii)
``domestic violence'' meaning felony or misdemeanor crimes of violence
committed by a person who (A) is a current or former spouse or intimate
partner of the victim under the family or domestic violence laws of the
jurisdiction of the recipient, or a person similarly situated to a
spouse of the victim; (B) is cohabitating, or has cohabitated, with the
victim as a spouse or intimate partner; (C) shares a child in common
with the victim; or (D) commits acts against a youth or adult victim
who is protected from those acts under the family or domestic violence
laws of the jurisdiction; or (iv) ``stalking'' meaning engaging in a
course of conduct directed at a specific person that would cause a
reasonable person to (A) fear for the person's safety or the safety of
others; or (B) suffer substantial emotional distress. The proposed
definition also clarifies that conduct meeting the definition of ``sex-
based harassment'' in proposed Sec. 106.2 constitutes sex-based
harassment that is prohibited under Title IX. With this clarification,
the Department recognizes that there may be other types of conduct that
could constitute sex-based harassment under other laws or a recipient's
policies but are not prohibited under Title IX.
The proposed definition would clarify that the scope of sex-based
harassment includes bases that were not expressly covered under the
term ``sexual harassment'' in current Sec. 106.30(a), including
harassment based on sex stereotypes, sex characteristics, pregnancy or
related conditions, sexual orientation, and gender identity.
The proposed definition would also include revisions to the scope
of conduct described in its second category, which addresses unwelcome
conduct on the basis of sex. These proposed revisions would provide
factors to consider when determining whether unwelcome sex-based
conduct creates a hostile environment in a recipient's education
program or activity.
The third category of the proposed definition would still
incorporate the definition of ``sexual assault'' from the Clery Act.
The proposed definition would incorporate the definitions of ``dating
violence,'' ``domestic violence,'' and ``stalking'' from the Violence
Against Women Reauthorization Act of 2022 (VAWA 2022). Instead of
including cross-references to statutory provisions in the Clery Act and
VAWA 2022, the proposed definition would include language from the
statutory definitions themselves to make it clear in the text of the
regulations how these terms are defined for purposes of Title IX. The
Department proposes incorporating the portion of the definition of
``domestic violence'' that is relevant to Title IX.
Reasons: Sex-Based Harassment. The Department's proposed
regulations refer to ``sex-based harassment'' rather than ``sexual
harassment.'' This revision is consistent with the Department's
statement that it interpreted Title IX to prohibit gender-based
harassment in response to comments received on the 2018 NPRM.
Specifically, the Department explained that its position in the 2020
amendments remained similar to its position in the 2001 Revised Sexual
Harassment Guidance that `` `[a]lthough Title IX does not prohibit
discrimination on the basis of sexual orientation, sexual harassment
directed at gay or lesbian students that is sufficiently serious to
limit or deny a student's ability to participate in or benefit from the
school's program constitutes sexual harassment prohibited by Title IX
under the circumstances described in this guidance.' '' 85 FR 30178-79
(quoting 2001 Revised Sexual Harassment
[[Page 41411]]
Guidance at 3). The Department also stated that ``gender-based
harassment, which may include acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility based on sex or sex-
stereotyping, but not involving conduct of a sexual nature, is also a
form of sex discrimination to which a school must respond.'' Id. at
30179 (quoting 2001 Revised Sexual Harassment Guidance at 3). To
address the concern that the 2020 amendments were underinclusive in
scope because they were limited to sexual harassment, the Department
stated that ``[t]hese final regulations include sexual harassment as
unwelcome conduct on the basis of sex that a reasonable person would
determine is so severe, pervasive, and objectively offensive that it
denies a person equal educational access; this includes but is not
limited to unwelcome conduct of a sexual nature, and may consist of
unwelcome conduct based on sex or sex stereotyping.'' Id.
During the June 2021 Title IX Public Hearing and in listening
sessions with stakeholders, OCR received requests to clarify that the
Title IX regulations apply to both sexual harassment and other forms of
harassment based on sex, including harassment based on sexual
orientation and gender identity. These requests indicated to the
Department that the current definition of ``sexual harassment'' does
not provide adequate clarity as to the scope of harassment covered.
Specifically, stakeholders expressed confusion regarding the scope of
sexual harassment, including noting that they were receiving questions
from their students regarding whether certain forms of harassing
conduct are covered under the current definition of ``sexual
harassment.'' Stakeholders also expressed concern that the definition
of ``sexual harassment'' fails to protect many individuals who
experience other forms of sex-based harassment due to the limited
coverage of the definition.
After reevaluating the issue, the Department proposes revising the
regulatory text to make clear that sexual harassment, as well as other
forms of sex-based harassment on the bases described in proposed Sec.
106.10, are covered under the Department's Title IX regulations to
dispel any confusion regarding the scope of sex-based harassment that
is prohibited under Title IX and therefore requires a recipient to
respond. The proposed clarifications would more clearly implement the
statements made by the Department in the preamble to the 2020
amendments that Title IX's broad nondiscrimination mandate covers all
forms of harassment based on sex, including sexual harassment, which
has also been OCR's longstanding view. See, e.g., 2001 Revised Sexual
Harassment Guidance at v, 3 (explaining that gender-based harassment,
including harassment based on sex stereotyping, is covered under Title
IX); 2010 Dear Colleague Letter on Harassment and Bullying at 7-8
(stating that Title IX prohibits gender-based harassment and explaining
that ``it can be sex discrimination if students are harassed either for
exhibiting what is perceived as a stereotypical characteristic for
their sex, or for failing to conform to stereotypical notions of
masculinity and femininity''); U.S. Dep't of Educ., Office for Civil
Rights, Supporting the Academic Success of Pregnant and Parenting
Students Under Title IX of the Education Amendments of 1972 at 8 (June
2013) (2013 Pregnancy Pamphlet), https://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf (``Title IX prohibits harassment of
students based on sex, including harassment because of pregnancy or
related conditions.''); see also 85 FR 30179. The Department also notes
that consistent with the Department's position in the 2020 amendments,
the proposed definition of ``sex-based harassment'' prohibited under
Title IX would apply regardless of the sex of the harasser, i.e.,
including if the harasser and the person being harassed are members of
the same sex and that sex-based harassment ``is not limited to being
bi-directional (male-to-female and female-to-male)'' and ``any person
may experience [sex-based] harassment as a form of sex discrimination,
irrespective of the identity of the complainant or respondent.'' See 85
FR 30179. Further explanation of the scope of Title IX's prohibition on
sex discrimination and the bases of sex-based harassment covered by
this proposed definition is in the discussion of proposed Sec. 106.10.
The Department proposes adding language to the proposed definition
of ``sex-based harassment'' clarifying that conduct that meets the
definition of ``sex-based harassment'' is prohibited under Title IX and
therefore a recipient must take action to address it in accordance with
proposed Sec. 106.44. This clarification would also serve to
distinguish sex-based harassment that is prohibited under Title IX from
conduct that may be sex-based harassment under other laws or
recipients' policies but does not meet the Title IX regulatory
definition of ``sex-based harassment.'' A recipient may determine that
it is obligated to address sex-based harassment that does not meet the
definition of ``sex-based harassment'' prohibited under Title IX;
however, nothing in the proposed regulations would require it to do so.
This is consistent with the Department's position in the current
regulations that even when conduct does not meet the definition of
sexual harassment under current 106.30(a), nothing precludes a
recipient from addressing the conduct under the recipient's code of
conduct or other non-Title IX process. See, e.g., id. at 30090, 30199,
30206. Thus, under the proposed regulations, a recipient would be able
use its Title VII process to meet its obligations under Title VII to
address alleged conduct by an employee that does not meet the proposed
definition of ``sex-based harassment'' under Title IX because, for
example, that conduct did not create a hostile environment. In these
instances, a recipient may still have a duty under Title VII to address
the alleged conduct before it becomes actionable. See Erickson v. Wis.
Dep't of Corr., 469 F.3d 600, 605-06 (7th Cir. 2006) (stating that
Title VII's ```primary objective' . . . is `not to provide redress but
to avoid harm''' and that ``[e]mployers need to take `all steps
necessary to prevent sexual harassment from occurring,'' including
``taking reasonable steps to prevent harassment once informed of a
reasonable probability that it will occur'') (quoting Faragher v. City
of Boca Raton, 524 U.S. 775, 805-06 (1998)); see also Vance v. Ball
State Univ., 570 U.S. 421, 448-49 (2013) (stating that the employer is
liable for harassment if it failed to act reasonably to prevent the
harassment). This Title VII obligation is separate from any obligation
a recipient has under Title IX to address alleged conduct that meets
the proposed definition of ``sex-based harassment'' under Title IX. If
the alleged conduct also meets the proposed definition of ``sex-based
harassment'' under Title IX, the recipient must use a process that
satisfies the requirements set out in proposed Sec. 106.45 and, if
applicable proposed Sec. 106.46.
Unwelcome Conduct. The Department proposes retaining the
requirement that the conduct in categories one and two of the
definition of ``sex-based harassment'' must be unwelcome. Although the
Department does not propose revising this requirement, the Department
understands it is important to provide recipients with additional
clarity on how to analyze whether conduct is unwelcome under the
proposed regulations. Conduct would be unwelcome if a person did not
request or invite it and regarded the conduct as undesirable or
offensive. Acquiescence to the conduct or the failure to complain,
resist, or object when the conduct was taking place would not
[[Page 41412]]
mean that the conduct was welcome, and the fact that a person may have
accepted the conduct does not mean that they welcomed it. For example,
a student may decide not to resist the sexual advances of another
student out of fear, or a student may not object to a pattern of
sexually harassing comments directed at the student by a group of
fellow students out of concern that objections might cause the
harassers to make more comments. On the other hand, if a student
actively participates in sexual banter and discussions and gives no
indication that they object, then that would generally support a
conclusion that the conduct was not unwelcome, depending on the facts
and circumstances. In addition, simply because a person willingly
participated in the conduct on one occasion does not prevent that same
conduct from being unwelcome on a subsequent occasion. Specific issues
related to welcomeness may also arise if the person who engages in
harassment is in a position of authority. For example, because a
teacher has authority over the operation of their classroom, a student
may decide not to object to a teacher's sexually harassing comments
during class; however, this does not mean that the conduct was welcome
because, for example, the student may believe that any objections would
be ineffective in stopping the harassment or may fear that by making
objections they will be singled out for harassing comments or
retaliation.
Category One: Quid Pro Quo.
The Department proposes generally maintaining the language in the
first category of the definition of ``sexual harassment'' in the
current regulations with revisions to state that in addition to an
employee, an agent or other person authorized by the recipient to
provide an aid, benefit, or service under the recipient's education
program or activity is also prohibited from engaging in the quid pro
quo conduct described in the first category and that quid pro quo
harassment may be explicit or implicit.
In response to requests to broaden the scope of quid pro quo
harassment to include persons not directly employed by the recipient,
the Department explained in the preamble to the 2020 amendments that
``the quid pro quo harassment description is appropriately and
sufficiently broad because it applies to all of a recipient's
employees, so that it includes situations where, for instance, a
teacher, faculty member, or coach holds authority and control over a
student's success or failure in a class or extracurricular activity,''
and ``decline[d] to expand the description to include non-employee
students, volunteers, or others not deemed to be a recipient's
employee.'' 85 FR 30148. The Department further stated that it was
``persuaded by the Supreme Court's rationale in Gebser that Title IX
and Title VII differ with respect to statutory reliance on agency
principles'' and referenced the language in Gebser, noting that Title
VII ``explicitly defines `employer' to include `any agent,''' id. at
30148, but ``Title IX contains no comparable reference to an
educational institution's agents, and so does not expressly call for
application of agency principles'' id. at 30148 n.646 (quoting Gebser,
524 U.S. at 283). During the June 2021 Title IX Public Hearing and in
listening sessions with stakeholders, OCR received similar requests to
prohibit quid pro quo harassment by any person, not just employees. The
Department reviewed these requests and now proposes to revise the scope
of quid pro quo sex-based harassment to include an agent or other
person authorized by the recipient to provide an aid, benefit, or
service under the recipient's education program or activity. The
Department proposes this change to effectuate Title IX, consistent with
the statutory language prohibiting a person from being excluded from
participation in or denied the benefits of any education program or
activity on the basis of sex. This proposed change is also consistent
with the Department's Title IX regulations regarding the provision of
aid, benefit, or services, which have made clear since 1975 that a
recipient is responsible for the nondiscriminatory provision of any
aid, benefit, or service to a student and have not been limited to the
provision of such aid, benefit, or services only by a recipient's
employees. 34 CFR 106.31(b).
The Department is mindful of the Supreme Court's decision in
Gebser, which the Department previously relied upon in declining to
expand the description of quid pro quo harassment in response to
comments received on the 2018 NPRM. Although the Court in Gebser
rejected Title VII's agency principles for the purpose of determining a
school's liability for monetary damages under Title IX, after
revisiting this issue, the Department proposes that this is not the
appropriate analysis for assessing the Department's responsibility for
the administrative enforcement of Title IX. Gebser, 524 U.S. at 283. As
explained in greater detail in the discussion of OCR's Guidance and
Supreme Court Precedent on Title IX's Application to Sexual Harassment
(Section II.B.1), the Court repeatedly and explicitly stated in Gebser
and Davis that the liability standard it established was limited to
private actions for monetary damages, not administrative enforcement
action. See, e.g., Gebser, 524 U.S. at 283, 287; see also Davis, 526
U.S. at 633, 639-44, 649-53. It was within this framework that the
Court rejected Title VII's agency principles for purposes of
determining a school's liability for monetary damages under Title IX.
In contrast, the Department's proposal to include agents or other
persons authorized by the recipient to provide an aid, benefit, or
service under the recipient's education program or activity in the
scope of quid pro quo sex-based harassment is not based on Title VII
agency principles and is consistent with Title IX sexual harassment
case law holding that ``someone in authority'' may commit quid pro quo
sexual harassment. See, e.g., Papelino v. Albany Coll. of Pharmacy
Union Univ., 633 F.3d 81, 89 (2d Cir. 2011); Willis v. Brown Univ., 184
F.3d 20, 25 (1st Cir. 1999).
Because determining whether a person has been authorized to provide
aid, benefits, or services as part of a recipient's education program
or activity is fact-specific, the Department declines at this time to
provide a definitive list of individuals who would qualify but provides
examples below to assist a recipient in making this determination for
purposes of quid pro quo harassment. For example, some recipients may
rely on unpaid volunteers to coach interscholastic athletic teams or
club sports teams offered by the recipient. Even though these
volunteers are not employed directly by the recipient, unpaid volunteer
coaches hold authority and control over a student's participation or
performance in an extracurricular activity offered by the recipient. As
such, they would qualify as persons who are subject to the prohibition
on quid pro quo harassment because they may properly be considered
persons authorized by the recipient to provide aid, benefits, or
services under the recipient's education program or activity.
Similarly, graduate students who teach their own course or serve as a
teaching assistant and are responsible for providing instruction and
assigning grades in a course (i.e., an aid, benefit, or services to
students as part of a recipient's education program or activity) but
who are not employed directly by a recipient would also be subject to
the prohibition on quid pro quo harassment. In addition, if a recipient
contracts with persons or
[[Page 41413]]
organizations to provide benefits, services, or opportunities to
students under the recipient's education program or activity, those
individuals could commit quid pro quo harassment. Other examples of
persons who may be authorized by a recipient to provide aid, benefits,
or services under the recipient's education program or activity would
include but are not limited to, persons who supervise internships or
clinical experiences that are part of a student's academic program,
volunteers who regularly provide an aid, benefit or service under a
recipient's education program or activity, or board of trustees'
members who serve as unpaid volunteers. On the other hand, in the
Department's experience, students in positions of responsibility in an
extracurricular activity, such as a team captain or club president, are
generally not authorized by a recipient to provide aid, benefits, or
services under the recipient's education program or activity and would
not come under this prohibition.
The Department stated, in the preamble to the 2020 amendments, that
quid pro quo harassment could include explicit and implicit conduct but
did not expressly make this point in the text of the current
regulations. The proposed revisions to the regulatory text would
incorporate the principle the Department articulated in the preamble to
the 2020 amendments that quid pro quo harassment should be interpreted
``broadly to encompass situations where the quid pro quo nature of the
incident is implied from the circumstances'' and that ``quid pro quo
harassment applies whether the `bargain' proposed by the recipient's
employee is communicated expressly or impliedly.'' 85 FR 30147
(footnotes omitted). In addition, the Department proposes retaining the
interpretation articulated in the preamble to the 2020 amendments that
``quid pro quo harassment does not depend on whether `the student
resists and suffers the threatened harm or submits and avoids the
threatened harm,' '' to show that the student's ability to participate
in or benefit from the school's program has been denied or limited, on
the basis of sex in violation of the Title IX regulations. Id. at 30148
n.645 (emphasis omitted) (quoting 2001 Revised Sexual Harassment
Guidance at 5).
Category Two: Hostile Environment
Distinction between administrative enforcement and private lawsuits
for monetary damages. In the 2020 amendments, the Department adopted
verbatim the formulation that the Davis Court used in the context of
private lawsuits for monetary damages: ``unwelcome conduct that a
reasonable person would determine is `so severe, pervasive, and
objectively offensive' that it effectively denies a person equal access
to education.'' Id. at 30036 (quoting Davis, 526 U.S. at 650). OCR
heard from a variety of stakeholders in connection with the June 2021
Title IX Public Hearing and in listening sessions regarding the current
definition of ``sexual harassment.'' In addition, stakeholders provided
views on the current definition of ``sexual harassment'' during
meetings held in 2022 under Executive Order 12866. Some stakeholders
supported the current definition while other stakeholders urged the
return to the prior definition of ``sexual harassment'' (i.e., hostile
environment) previously used in OCR's administrative enforcement and
expressed concern that the current narrower definition, which is based
on case law related to private lawsuits for monetary damages, could
leave some serious sexual misconduct unaddressed. These stakeholders
also expressed concern about the inconsistency between the new,
narrower definition in the 2020 amendments and the longstanding,
broader definition used in prior OCR guidance, Title VII case law, and
EEOC guidance. These stakeholders encouraged the Department to take a
more uniform approach to hostile environment harassment, noting that it
is a concept developed though court decisions interpreting other
Federal statutes prohibiting discrimination, including Title VII and
Title VI.
The Department reviewed its decision to use the standards
applicable to private suits for monetary damages as the starting point
for the standards used by OCR in its administrative enforcement of
Title IX, including the Supreme Court's standard for actionable sexual
harassment under Title IX. The Department's tentative view is that it
is permitted to depart from the standards set out by the Court for
actionable sexual harassment under Title IX because the Court expressly
acknowledged the power of Federal agencies, such as the Department, to
``promulgate and enforce requirements that effectuate [Title IX's]
nondiscrimination mandate,'' even in circumstances that would not give
rise to a claim for monetary damages. Gebser, 524 U.S. at 292. Such a
view is consistent with how the Court has interpreted the Department's
broad regulatory authority in other Title IX contexts. For example, the
Court also noted that ``the Department of Education could enforce the
requirement administratively'' that a school ``promulgate a grievance
procedure'' even though the failure to do so ``does not itself
constitute `discrimination' under Title IX.'' Id. Similarly, the Court
has explained that the Department may require schools to sign
assurances of compliance under Title IX, even though the failure to
sign such assurances would not itself constitute sex discrimination by
the recipient. See Grove City Coll., 465 U.S. at 574.
After considering the issues and reweighing the facts and
circumstances, including the views expressed by a variety of
stakeholders, the Department proposes retaining the term ``unwelcome
conduct'' from the 2020 amendments, but replacing the definition of
``sexual harassment'' from Davis in the current regulations with the
hostile environment framework to describe when sex-based harassment in
category two is prohibited under Title IX.
The proposed regulations thus provide that sex-based harassment in
category two would cover unwelcome sex-based conduct that is
sufficiently severe or pervasive that, based on the totality of the
circumstances and evaluated subjectively and objectively, it denies or
limits a person's ability to participate in or benefit from the
recipient's education program or activity (i.e., the conduct creates a
hostile environment).
In the preamble to the 2020 amendments, the Department acknowledged
that it is not legally required to adopt the Gebser/Davis framework for
sexual harassment, but noted that the Supreme Court did not prohibit
the Department from doing so and chose to adopt the Davis standard for
actionable sexual harassment in part because ``aligning the Title IX
sexual harassment definition in administrative enforcement and private
litigation contexts provides clear, consistent expectations for
recipients.'' 85 FR 30149.
The Department's tentative view is that defining ``sex-based
harassment'' in category two using the hostile environment framework
will enable the Department to enforce Title IX's nondiscrimination
mandate and provide more effective protection against sex
discrimination in a recipient's education program or activity because
the definition of ``sex-based harassment'' covers a broader range of
sexual misconduct than that covered under the definition of ``sexual
harassment'' in the current regulations. The Department's tentative
view is also
[[Page 41414]]
that the hostile environment framework appropriately captures the key
concepts articulated by the Court in Davis and protects the First
Amendment rights and interests of students and employees. The
Department acknowledges that revising the definition of ``sex-based
harassment'' in category two using the hostile environment framework
may create additional work for recipients because they will be subject
to a different standard in the administrative enforcement context than
they are in the context of private suits for monetary damages and
because the definition may require recipients to respond to a broader
range of conduct, but Title IX's plain language prohibits any
discrimination on the basis of sex in a recipient's education program
or activity and the Department proposes that in the administrative
enforcement context Title IX must function as a strong and
comprehensive measure to effectively address sex discrimination. See
generally 118 Cong. Rec. 5803-5812 (1972) (statement of Sen. Bayh).
Hostile environment analysis. The proposed revisions to the second
category of sex-based harassment would require that the unwelcome sex-
based conduct be sufficiently severe or pervasive that, based on the
totality of the circumstances and evaluated subjectively and
objectively, it denies or limits a person's ability to participate in
or benefit from the recipient's education program or activity.
Requiring the unwelcome sex-based conduct to be evaluated subjectively
and objectively and based on the totality of the circumstances is
consistent with the analysis discussed by the Department in the
preamble to the 2020 amendments, which stated that ``whether harassing
conduct is `objectively offensive' must be evaluated under a reasonable
person standard, as a reasonable person in the complainant's position''
and also required that the conduct be unwelcome from a subjective
perspective. 85 FR 30167. This is also consistent with Davis and
relevant Title VII Supreme Court cases. See, e.g., Davis, 526 U.S. at
650 (conduct must be ``objectively offensive'' to trigger liability for
money damages); Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993)
(explaining that ``if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the
conditions of the victim's employment, and there is no Title VII
violation'' and that a ``reasonable person'' standard should be used to
determine whether sexual conduct constituted harassment); Oncale, 523
U.S. at 81 (``[T]he objective severity of harassment should be judged
from the perspective of a reasonable person in the [complainant's]
position, considering `all the circumstances.' '' (quoting Harris, 510
U.S. at 23)).
The Department's proposal to require that the conduct be ``severe
or pervasive'' as opposed to ``severe, persistent, or pervasive'' is
consistent with the Court's opinion in Davis. Although the Davis Court
described the conduct at issue in the case as ``persistent,'' that term
was not part of the Court's analysis or the definition adopted by the
Court. See Davis, 526 U.S. at 650-53 (describing damages liability
standard when funding recipient is deliberately indifferent to
harassment that is ``severe, pervasive, and objectively offensive'').
Title IX prohibits sex-based harassment that denies or limits a
person's ability to participate in or benefit from the education
program or activity. The Department explained in the preamble to the
2020 amendments that the unwelcome conduct under category two must
``effectively den[y] a person equal access to the recipient's education
program or activity'' for two reasons: first, because that was the
language used by the Court in Davis; and second, because the Department
believed that it was the ``equivalent of a violation of Title IX's
prohibition on exclusion from participation, denial of benefits, and/or
subjection to discrimination.'' 85 FR 30156-57. After considering the
issue and reweighing the facts and circumstances, the Department
proposes revising this language to encompass sex-based conduct that
denies or limits a person's ability to participate in or benefit from
the recipient's education program or activity. The Department's current
position is that this language more appropriately captures the full
scope of Title IX's nondiscrimination mandate. The language of the
statute, ``denied the benefits,'' does not require otherwise and, to
the contrary, supports the Department's proposed revision because a
limitation on equal access constitutes a denial of benefits. 20 U.S.C.
1681(a). For example, Title IX prohibits a recipient from awarding
female students half as many credits as male students for taking the
same class, even though the recipient has not completely denied female
students the credit benefits of taking the class. In this way, a
recipient need not completely deny, by policy or effect, a student's
equal access to its education program or activity based on sex before
it denies a student the benefits of its program or activity, thereby
violating Title IX.
The Department's proposed regulatory language is consistent in many
respects with the principles articulated in the preamble to the 2020
amendments, which explained the variety of situations that would be
covered under the current regulations. There the Department explained
that a complainant does not need to have been ``entirely, physically
excluded from educational opportunities,'' 85 FR 30169, and ``no
specific type of reaction to the alleged sexual harassment is necessary
to conclude'' that the complainant was effectively denied equal access
to the recipient's education program or activity, id. at 30170. The
Department also explained that ``[c]ommenters' examples of a third
grader who starts bed-wetting or crying at night due to sexual
harassment, or a high school wrestler who quits the team but carries on
with other school activities following sexual harassment, likely
constitute examples of denial to those complainants of `equal' access
to educational opportunities even without constituting a total
exclusion or denial of an education.'' Id. at 30170. These examples
would also satisfy the requirement in the proposed regulations that the
harassment must deny or limit the complainant's ability to participate
in or benefit from the recipient's education program or activity in
order to be covered. The Department also noted in the preamble to the
2020 amendments that ``signs of enduring unequal educational access due
to . . . harassment may include, as commenters suggest, skipping class
to avoid a harasser, a decline in a student's grade point average, or
having difficulty concentrating in class.'' Id. These examples would
also constitute signs of a denial or limitation of a complainant's
ability to participate in or benefit from the recipient's education
program or activity under the proposed regulations. Additional
information and examples related to this element of the definition are
provided in the discussion of factors that a recipient must consider
when determining if a hostile environment has been created.
Consistency with the First Amendment. In the preamble to the 2020
amendments, the Department wrote that the ``Davis definition of sexual
harassment as `severe, pervasive, and objectively offensive' comports
with First Amendment protections,'' while the definition articulated in
prior Department guidance ``has led to infringement of rights of free
speech and academic freedom of students and faculty.'' Id. at 30036
n.88. After considering these issues, the Department's tentative view
is that the proposed scope of conduct that would
[[Page 41415]]
constitute a hostile environment under the definition of ``sex-based
harassment'' in proposed Sec. 106.2 would sufficiently protect the
constitutional rights and interests of students and employees. It would
do so by requiring not only that the prohibited conduct be sufficiently
severe or pervasive that, based on the totality of the circumstances
and evaluated subjectively and objectively, it creates a hostile
environment, but also that the conduct be based on sex and occur under
the recipient's education program or activity. Title IX protects
individuals from sex discrimination and does not regulate the content
of speech as such. OCR has expressed this position repeatedly in
discussing Title IX in prior guidance. See 2001 Revised Sexual
Harassment Guidance at 22; 2003 First Amendment Dear Colleague Letter;
2014 Q&A on Sexual Violence at 43-44. The Department emphasizes that in
cases of alleged sex-based harassment, the protections of the First
Amendment must be considered if, for example, issues of speech or
expression are involved, including academic freedom. Students,
employees, and third parties retain their First Amendment rights, and
the Department's proposed regulations would not infringe these rights.
The Department further notes that current Sec. 106.6(d), to which the
Department is not proposing any changes, states that nothing in the
Title IX regulations requires a recipient to ``[r]estrict any rights
that would otherwise be protected from government action by the First
Amendment of the U.S. Constitution.'' 34 CFR 106.6(d).
Consistent with the proposed hostile environment category of sex-
based harassment discussed above, the offensiveness of a particular
expression as perceived by some persons, standing alone, would not be a
legally sufficient basis to establish a hostile environment under Title
IX. In addition, a recipient must formulate, interpret, and apply its
rules in a manner that respects the legal rights of students and
employees when taking action to end sex-based harassment that creates a
hostile environment. For instance, although the First Amendment may
prohibit a recipient from restricting the rights of students to express
opinions about one sex that may be considered derogatory, the recipient
can affirm its own commitment to nondiscrimination based on sex and
take steps to ensure that competing views are heard. The age of the
students involved and the location or forum in which such opinions are
expressed may affect the actions a recipient can take consistent with
the First Amendment.
Alignment with Title VII. Although courts often rely on
interpretations of Title VII to inform interpretations of Title IX, in
the preamble to the 2020 amendments the Department explained that there
are differences between Title IX ``and workplace policies that may
exist in the corporate world.'' 85 FR 30199; see also Franklin, 503
U.S. at 75; Jennings, 482 F.3d at 695; Frazier, 276 F.3d at 66;
Gossett, 245 F.3d at 1176. The Department also noted that Title VII's
prohibition on sexual harassment differs from that under Title IX in
the 2020 amendments and recipients that are subject to both Title VII
and Title IX must comply with both sets of obligations. 85 FR 30440.
The Department further noted that ``[c]ourts impose different
requirements under Title VII and Title IX and recipients comply with
case law that interprets Title VII and Title IX differently.'' Id. at
30443. The Department recognizes the differences between educational
and workplace environments and that in the context of private suits for
monetary damages under Title IX, the Supreme Court has applied a
different definition of ``sexual harassment'' under Title IX than it
has in the Title VII context. Id. at 30199, 30440, 30443. The
Department also heard from stakeholders, including recipients, that the
differences between the definitions of ``sexual harassment'' in OCR's
administrative enforcement context and the Title VII context created
confusion for employees and requesting alignment between the Title IX
and Title VII definitions, if possible, for sex-based harassment under
the recipient's education program or activity. Although these
stakeholders acknowledged that different grievance procedures may be
appropriate for resolving student and employee complaints of sex-based
harassment given the varying rights of students and employees, they
nonetheless expressed a desire for consistency in the definition of
``sex-based harassment'' under Title IX and Title VII.
After considering this issue, including the concerns expressed by
stakeholders, the Department's tentative view is that, while not
required to do so, it is appropriate to more closely align the hostile
environment category of ``sex-based harassment'' in the context of
OCR's administrative enforcement of Title IX with how hostile
environment sexual harassment is defined by courts and the EEOC under
Title VII in the employment context given that recipients must comply
with both laws and both Title VII and Title IX cover employees. The
proposed hostile environment framework under Title IX is more similar
to the definition of ``hostile environment'' under Title VII than the
definition of ``sexual harassment'' under the current Title IX
regulations. The Department's tentative view is that this alignment
will better facilitate recipients' ability to comply with their
obligations under the Department's proposed Title IX regulations, while
also recognizing recipients' obligations under Title VII. Also, and
most fundamentally as discussed above, the proposed hostile environment
framework will better enable the Department to implement Title IX's
prohibition on sex discrimination. In addition, as explained in the
discussion of hostile environment factors, whether unwelcome sex-based
conduct has created a hostile environment is a fact-specific
determination based on the totality of the circumstances, which enables
recipients to take into consideration the characteristics of the
parties involved, including whether they are students or employees, in
making the determination. Although the Department proposes more closely
aligning the definition of ``sex-based harassment'' under Title IX with
the definition of ``sexual harassment'' under Title VII, a recipient
must still be able to make individualized determinations whether
certain conduct constitutes prohibited sex-based harassment and may
conclude that certain conduct between employees is not prohibited while
the same conduct between students is prohibited and vice versa.
As explained in the discussion of the Framework for Grievance
Procedures for Complaints of Sex Discrimination (Section II.F), the
Department continues to recognize there are differences between
recipients' relationships with their employees and their students.
However, the Department does not view these differences as relevant for
the analysis of the hostile environment category of sex-based
harassment in OCR's administrative enforcement of Title IX, and the
Department thus proposes that the same analysis of what constitutes
hostile environment sex-based harassment should apply regardless of
whether the persons involved in the sex-based harassment are students
or employees. The Department's tentative position is that although a
recipient's grievance procedures may appropriately vary to ensure an
equitable response to complaints involving students and those involving
only employees in the postsecondary setting, particularly in light of
Title VII's protections for
[[Page 41416]]
employees, there is no similar justification for variation in the
analysis of what constitutes hostile environment sex-based harassment
that applies to students and employees. In addition, as explained in
the discussion of the hostile environment factors, the hostile
environment analysis requires the recipient to examine the alleged
facts from the position of a reasonable person in the complainant's
position, considering the surrounding circumstances, and make an
individualized determination whether the unwelcome sex-based conduct
created a hostile environment based on the totality of the
circumstances, including the age and roles of the parties. The
Department recognizes that, particularly in a secondary or
postsecondary education program or activity, the student environment
may differ from the environment of teachers, faculty, and staff in ways
that may be relevant for the recipient's fact-specific analysis of
whether a hostile environment was created. For additional information
regarding the differences between recipients' relationships with their
employees and their students and the applicable procedural requirements
to complaints of sex-based harassment, see the discussion of the
Framework for Grievance Procedures for Complaints of Sex Discrimination
(Section II.F). The Department also notes that in addition to more
closely aligning with how hostile environment sexual harassment is
defined by courts and the EEOC under Title VII, the proposed hostile
environment framework in category two of the definition of ``sex-based
harassment'' would also more closely align with the definition of
``hostile environment harassment'' in the context of enforcement of the
Fair Housing Act by the U.S. Department of Housing and Urban
Development. 24 CFR 100.600(a)(2). The Department's tentative view is
that although the Department is not required to align its analysis of
what constitutes a hostile environment under Title IX with the
definition of ``hostile environment harassment'' under the FHA, closer
alignment of the two definitions would assist recipients given that the
FHA applies to campus housing for students, faculty, or staff, and
those institutions that are subject to the FHA and receive Federal
funding from the Department must also comply with the Department's
Title IX regulations.
Alignment with other Federal civil rights laws enforced by OCR. The
Department's proposed regulations would also more closely align the
hostile environment analysis under Title IX with how OCR defines
``harassment'' based on race, color, national origin, or disability for
administrative enforcement purposes, which would provide increased
clarity to recipients. See Notice of Investigative Guidance, Racial
Incidents and Harassment Against Students at Educational Institutions,
59 FR 11448, 11449-50 (Mar. 10, 1994) (1994 Racial Harassment
Guidance), https://www.govinfo.gov/content/pkg/FR-1994-03-10/pdf/FR-1994-03-10.pdf (also available at https://www2.ed.gov/about/offices/list/ocr/docs/race394.html) (explaining that a hostile environment
under Title VI includes racial harassment ``that is sufficiently
severe, pervasive or persistent so as to interfere with or limit the
ability of an individual to participate in or benefit from the
services, activities or privileges provided by a recipient''); U.S.
Dep't of Educ., Office for Civil Rights, Dear Colleague Letter:
Prohibited Disability Harassment (July 25, 2000), https://www.ed.gov/ocr/docs/disabharassltr.html (``When harassing conduct is sufficiently
severe, persistent, or pervasive that it creates a hostile environment,
it can violate a student's rights under the Section 504 and Title II
regulations.''); 2010 Dear Colleague Letter on Harassment and Bullying
at 1-2 (stating that harassment on the basis of race, color, national
origin, sex, or disability ``creates a hostile environment when the
conduct is sufficiently severe, pervasive, or persistent so as to
interfere with or limit a student's ability to participate in or
benefit from the services, activities, or opportunities offered by the
school''). The Department is not proposing to simply import a
definition of ``hostile environment'' from the context of harassment
based on race, color, national origin, or disability. As explained in
the preamble to the 2020 amendments, the Department is not required
under the Administrative Procedure Act ``to devise identical or even
similar rules to eliminate discrimination on the bases of sex, race, or
disability (or of any other kind).'' 85 FR 30528. The Department's
tentative view, however, is that there is value for recipients,
students, and others in incorporating similar concepts, to the extent
possible, into the analyses of hostile environment harassment under all
of the civil rights laws that the Department enforces.
Factors that a recipient must consider when determining if a
hostile environment has been created. Whether a hostile environment has
been created is a fact-specific inquiry and requires analyzing the
conduct and its effect on the complainant to draw distinctions between
conduct that creates a hostile environment and conduct that does not
rise to that level. A hostile environment may manifest itself in
different ways for different complainants. In view of this fact-
specificity, the Department proposes adding language to category two of
the definition of ``sex-based harassment'' that would identify factors
for determining whether the unwelcome conduct created a hostile
environment. Category two of the proposed definition of ``sex-based
harassment'' would set out the following factors to consider when
determining whether a hostile environment based on sex exists: (i) the
degree to which the conduct affected the complainant's ability to
access the recipient's education program or activity; (ii) the type,
frequency, and duration of the conduct; (iii) the parties' ages, roles
within the recipient's education program or activity, previous
interactions, and other factors about each party that may be relevant
to evaluating the alleged unwelcome conduct; (iv) the location of the
conduct, the context in which the conduct occurred, and the control the
recipient has over the respondent; and (v) other sex-based harassment
in the recipient's education program or activity. A recipient must
consider whether each of these factors applies in determining whether a
hostile environment based on sex exists but may determine that one or
more factors is not relevant to a particular set of facts. Also, the
Department does not intend that the specific hostile environment
factors listed in proposed Sec. 106.2 would be exhaustive, as
evidenced by the use of the word ``includes.'' A recipient would not be
prohibited from considering additional relevant factors to determine
whether a hostile environment has been created. Below the Department
discusses the analysis under each factor in greater detail. Although
the facts in the examples below are not necessarily sufficient to
demonstrate a sex-based hostile environment (i.e., a fuller, fact-
specific analysis would be required), they illustrate how recipients
might consider the relevant factors in determining whether a hostile
environment has been created.
(1) The degree to which the conduct affected the complainant's
ability to access the recipient's education program or activity. A
hostile environment may manifest itself in different ways for different
complainants. In some cases, a complainant's grades may go down or
[[Page 41417]]
the complainant may feel forced to withdraw from school because of the
harassing behavior. A complainant may also suffer physical injuries or
mental or emotional distress. Other complainants may be able to
maintain their grades or remain in a program or activity, but it may be
more difficult for them to do so because of the harassment. For
example, a student may remain in class while enduring a teacher's
repeated hostile comments about the complainant's pregnancy, but they
may be anxious throughout the day and have difficulty concentrating in
class. Similarly, some complainants may be able to remain on a sports
team, despite performing less successfully or with greater effort than
previously due to humiliation and anger caused by repeated, unwelcome
sexual advances from team members. A hostile environment can occur even
if the harassment is not targeted specifically at the individual
complainant. For example, if a group of students or a teacher regularly
directs sexual comments toward a student, a sex-based hostile
environment may be created for others in the classroom. A hostile
environment can also arise when sex-based harassment occurring outside
of a recipient's education program or activity creates a sex-based
hostile environment within the recipient's education program or
activity. For example, if a student is sexually assaulted by a fellow
student while participating in a travel soccer program not sponsored by
the school, the student who was assaulted may be subject to a sex-based
hostile environment while at school as a result of that sexual assault
when the student who perpetrated the sexual assault and his friends
intimidate and mock the student who was sexually assaulted, which
causes the student who was sexually assaulted to skip classes to avoid
interactions with the other student and his friends.
(2) The type, frequency, and duration of the conduct. The more
severe or pervasive, the conduct is, the more likely it is to create a
hostile environment. For instance, if a complainant is taunted
repeatedly by one or more students about not conforming to sex
stereotypes because he wears nail polish and has long hair, the
complainant may experience a hostile environment based on sex,
particularly if the conduct has been going on for a period of weeks or
takes place throughout the school or if the taunts are made by a number
of students. The more severe the conduct, the less the need to show a
repetitive series of incidents; this is particularly true if the
harassment is physical. For example, a single incident of severe
physical violence targeting the above student would also likely create
a hostile environment for that student. The Department notes that a
single incident of sexual assault, stalking, dating violence, or
domestic violence as described in category three of the proposed
definition of ``sex-based harassment'' (and under the current
regulations) would constitute prohibited sex-based harassment with no
further showing necessary to demonstrate that a hostile environment
exists. These examples are not exhaustive. On the other hand, conduct
would not likely create a hostile environment if the recipient
determines that the conduct occurs infrequently or is not objectively
and subjectively offensive, such as a one-off comment by a student's
friend that she was acting ``girly'' or ``like a boy.'' Similarly,
because students may date one another, a single request for a date or a
gift of flowers from one student to another, for example, even if
unwelcome, generally would not create a hostile environment if the
request was infrequent. There may be circumstances, however, in which
repeated unwelcome requests for dates or similar conduct could create a
hostile environment, especially if a person, whose requests for dates
have been refused previously, continues requesting dates from the same
person in an intimidating, threatening, or repetitive manner. Depending
on the facts and circumstances, such conduct could also constitute
stalking under category three of the proposed definition of ``sex-based
harassment.'' It would be the recipient's responsibility to determine
whether the conduct is severe or pervasive.
(3) The parties' ages, roles within the recipient's education
program or activity, previous interactions, and other factors about
each party that may be relevant to evaluating the alleged unwelcome
conduct. The parties' ages and roles may be especially relevant in
cases involving allegations of sex-based harassment of a student by a
school employee. For example, due to the level of control a professor,
teacher, or coach has over students, harassing conduct by that person
toward a student is more likely to create a hostile environment than
similar conduct by another student. This factor would also involve
consideration of any prior relationships or interaction between the
parties, subject to the limitations in proposed Sec.
106.45(b)(7)(iii), and other factors such as how often the parties are
required to interact with each other on a regular basis. The parties'
previous interactions and other factors about each party may also be
particularly relevant when considering allegations that involve conduct
that originated outside of the recipient's education program or
activity or outside of the United States. For example, if a student was
assaulted by a peer in a study abroad program and alleges that a
hostile environment exists when both students return to campus, the
recipient should consider the parties' previous interactions to fully
address any hostile environment within its education program and
activity. For additional discussion of conduct that originated outside
of the recipient's education program or activity or outside the United
States see the discussion of proposed Sec. 106.11.
(4) The location of the conduct, the context in which the conduct
occurred, and the control the recipient has over the respondent.
Harassing conduct that occurs on a school bus may be more intimidating
than similar conduct on a school playground, for example, because the
restricted area makes it impossible for students to avoid their
harassers. Harassing conduct that occurs in a personal or secluded
area, such as a dorm room or residence hall, can have a greater effect
(e.g., be experienced as more threatening) than would similar conduct
in a more public area. On the other hand, harassing conduct that occurs
in a more public space may be more humiliating to the person being
targeted. Even when harassing conduct occurs outside of the recipient's
education program or activity, the location and context of that
conduct, and whether or not the recipient has control over the
respondent, are relevant to evaluating whether a hostile environment
based on sex exists within the recipient's education program or
activity. Recipients should be aware that although a recipient's
control over a respondent is relevant to evaluating whether a hostile
environment based on sex exists when the harassing conduct occurs
outside of the recipient's education program or activity, the analysis
is different when the harassing conduct occurred in a recipient's
education program or activity. In that context, a hostile environment
may exist regardless of whether the recipient has control over the
respondent, and the recipient would be required to meet its obligations
under proposed Sec. 106.44. The amount of control that a recipient has
over a respondent is relevant only to the extent it may impact the
scope of the recipient's response. For example, if a non-affiliated
third party sexually assaults a student on campus, the recipient would
be able to provide the student with supportive measures and
[[Page 41418]]
could issue a no-trespass order against the non-affiliated third party,
if it knows that person's identity, even if the recipient otherwise
lacks control over the person.
(5) Other sex-based harassment in the recipient's education program
or activity. A series of harassing incidents in the recipient's
education program or activity could--taken together--create a hostile
environment for the targeted student, even if each incident by itself
would not. For example, if a student's peers repeatedly denigrate a
student as ``girly'' over a period of weeks and the student reports
that the treatment is causing him distress and interfering with his
ability to concentrate in class, the recipient would have an obligation
to determine whether a hostile environment based on sex exists. Even if
infrequent or inconsistent incidents may not be sufficiently serious to
create a hostile environment, that same treatment repeated by different
students in each class throughout the day may do so.
Category Three: Clery Act
The current regulations incorporate the statutory definitions of
``sexual assault'' from the Clery Act and ``dating violence,''
``domestic violence,'' and ``stalking'' from the Violence Against Women
Reauthorization Act of 2013 through cross-references to those statutes.
VAWA 2022 renumbered the definitions of ``dating violence'' and
``stalking'' and renumbered and made substantive changes to the
definition of ``domestic violence.'' Public Law 117-103.\5\ The
definition of ``sexual assault'' in the Clery Act remains unchanged.
---------------------------------------------------------------------------
\5\ The Department notes that VAWA 2022 does not take effect
until October 1, 2022, but chooses to include definitions from VAWA
2022 in these proposed regulations to provide clarity for recipients
because it will be in effect when the final regulations are
published.
---------------------------------------------------------------------------
The Department proposes to include in the proposed definition of
``sex-based harassment'' (Sec. 106.2) the text of the definitions of
``sexual assault'' in the Clery Act at 20 U.S.C. 1092(f)(6)(A)(v),
``dating violence'' in VAWA 2022 at 34 U.S.C. 12291(a)(11), and
``stalking'' in VAWA 2022 at 34 U.S.C. 12291(a)(36), instead of merely
including cross-references to the applicable provisions in VAWA 2013
and the Clery Act. In addition, the Department proposes explicitly
setting out how ``domestic violence'' would be defined by incorporating
relevant language from the definition of ``domestic violence'' in VAWA
2022 at 34 U.S.C. 12291(a)(12). The Department's proposed definition of
``domestic violence'' would not include all of the language from the
definition of ``domestic violence'' in VAWA 2022 because in the
Department's current view, some of the VAWA 2022 definition of
``domestic violence'' is not applicable to Title IX. The Department,
therefore, proposes including the specific portions of the VAWA 2022
definition of ``domestic violence'' that are applicable to Title IX to
avoid confusion given the expanded definition in the VAWA 2022
reauthorization, which added ``in the case of victim services, includes
the use or attempted use of physical abuse or sexual abuse, or a
pattern of any coercive behavior committed, enables or solicited to
gain or maintain power and control over a victim, including verbal,
psychological, economic, or technological abuse that may or may not
constitute criminal behavior.'' However, omitting this language does
not create a substantive change to the VAWA 2022 definition of
``domestic violence'' for Title IX purposes. The Department also does
not propose any substantive changes to the content of the definitions
of ``sexual assault,'' ``dating violence,'' and ``stalking.'' The
definitions of those terms are the same as the definitions that were
incorporated by cross-reference to the Clery Act and VAWA 2013 in the
definition of ``sexual harassment'' in the current regulations. The
Department's current position is that including the language from the
statutory definitions themselves in the proposed definition of ``sex-
based harassment'' as opposed to including cross-references to the
Clery Act and VAWA will be helpful for recipients by making it clear
how these terms are defined for purposes of Title IX.
During the June 2021 Title IX Public Hearing and in listening
sessions, OCR heard from stakeholders that there has been some
confusion regarding the reference in the current Title IX regulations
to the Clery Act's statutory definition of sexual assault. The
Department similarly heard about this confusion during meetings held in
2022 under Executive Order 12866. Specifically, stakeholders conveyed
confusion because the Clery Act's statutory definition of ``sexual
assault,'' which is referenced in the Title IX regulations, refers to
forcible and non-forcible sex offenses, but the FBI has retired those
terms and those terms are not included in the definition of ``sexual
assault'' in the Department's Clery Act regulations. The Department
notes that to dispel this confusion, all recipients may find it useful
to consult the Department's Clery Act regulations, discussed below, for
additional information about the Clery Act's definition of ``sexual
assault,'' although only postsecondary institutions are subject to the
Clery Act.
As explained above, current and proposed Title IX regulations adopt
the Clery Act's statutory definition of the term ``sexual assault,'' 20
U.S.C. 1092(f)(6)(A)(v), which that Act defines as ``an offense
classified as a forcible or nonforcible sex offense under the uniform
crime reporting [UCR] system of the Federal Bureau of Investigation
[FBI].'' The FBI UCR previously consisted of two crime reporting
systems: the Summary Reporting System (SRS) and the National Incident-
Based Reporting System (NIBRS). The current Clery Act regulations, 34
CFR 668.46(a) and 34 CFR part 668, subpart D, appendix A, define sexual
assault as an offense that meets the definition of rape, fondling,
incest, or statutory rape as used in the FBI's UCR program and direct
recipients to look to the SRS for a definition of ``rape'' and to the
NIBRS for definitions of ``fondling,'' ``statutory rape,'' and
``incest'' as the offenses falling under sexual assault. The Department
notes that although the FBI retired the SRS and transitioned to using
only the NIBRS in January 2021, the Clery Act regulations, including
those regulations' definition of ``sexual assault,'' remain in effect
and may be useful for recipients to consult. The Department stated in
the preamble to the 2014 Clery Act NPRM that the definition of ``sexual
assault'' in the Clery Act regulations reflects the definition of
``sexual assault'' in the Clery Act statute, but the Clery Act
regulations remove ``references to forcible and nonforcible sex
offenses and identify the sex offenses that sexual assault would
include to make the definition clear.'' 79 FR 35418, 35427 (June 20,
2014). The Department explained that it was removing the terms
``forcible'' and ``nonforcible'' from the definition of ``sexual
assault'' ``to combat the suggestion that a sex offense has not
occurred if physical force was not used.'' Id. at 35435.
Section 106.2 Definition of ``Relevant''
Current regulations: None. The term ``relevant'' is not defined in
the existing Title IX regulations. The Department stated in the
preamble to the 2020 amendments that ``the ordinary meaning of the word
should be understood and applied.'' 85 FR 30247 n.1018. In addition,
current Sec. 106.45(b)(6)(i) and (ii) states that ``[q]uestions and
evidence about the complainant's sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the
complainant's prior sexual behavior are offered to
[[Page 41419]]
prove that someone other than the respondent committed the conduct
alleged by the complainant, or if the questions and evidence concern
specific incidents of the complainant's prior sexual behavior with
respect to the respondent and are offered to prove consent.''
The current regulations incorporate the concept of relevance into
several provisions, specifically:
Recipients must conduct an objective evaluation of all
relevant evidence (Sec. 106.45(b)(1)(ii));
Recipients must train investigators on issues of relevance
(Sec. 106.45(b)(1)(iii));
Recipients must create an investigative report that fairly
summarizes relevant evidence (Sec. 106.45(b)(5)(vii));
Recipients must not restrict the ability of either party
to gather and present relevant evidence (Sec. 106.45(b)(5)(iii));
Postsecondary institutions must ensure that each party's
advisor has the ability to ask the other party and any witnesses all
relevant questions and follow-up questions, and that only relevant
cross-examination and other questions may be asked of a party or
witness (Sec. 106.45(b)(6)(i));
For all other institutions, including elementary and
secondary schools, recipients must provide parties with the opportunity
to submit written, relevant questions to the other party (Sec.
106.45(b)(6)(ii)); and
For all recipients, the decisionmaker must exclude oral or
written questions that are not relevant and explain any decision to
exclude a question as not relevant (Sec. 106.45(b)(6)(i) and (ii)).
Proposed regulations: The Department proposes adding a definition
of ``relevant'' to the regulations to help recipients understand their
obligations under Title IX. The Department proposes defining
``relevant'' as related to the allegations of sex discrimination under
investigation as part of the grievance procedures in Sec. 106.45, and
if applicable Sec. 106.46. The proposed regulations would clarify as
part of the definition that questions are relevant ``when they seek
evidence that may aid in showing whether the alleged sex discrimination
occurred,'' and that evidence is relevant ``when it may aid a
decisionmaker in determining whether the alleged sex discrimination
occurred.''
In addition, the proposed regulations, at Sec. 106.45(b)(7), would
set out three categories of evidence, including records, that would be
impermissible (i.e., must not be accessed, considered, disclosed, or
otherwise used) in the grievance procedures, regardless of whether the
evidence is relevant. Likewise, questions seeking these types of
evidence would be impermissible.
Reasons: Both the current regulations and the proposed regulations
use a relevance standard in the grievance procedures. The Department
proposes to add a definition of ``relevant'' to the regulatory text to
assist recipients in determining relevance and to help parties to
understand these determinations. In the preamble to the 2020
amendments, the Department ``decline[d] to define'' the term
``relevant'' and stated that it ``should be interpreted using [its]
plain and ordinary meaning.'' 85 FR 30304.
In connection with the June 2021 Title IX Public Hearing, OCR
received comments about the difficulty of making relevancy
determinations without a regulatory definition. Notwithstanding the
Department's instruction in the preamble to the 2020 amendments to use
the plain and ordinary meaning of the term ``relevant,'' OCR continued
to receive requests for a definition in connection with the June 2021
Title IX Public Hearing. After considering the issue and reweighing the
facts and circumstances, including these continued requests, the
Department proposes adding a definition of ``relevant'' to the proposed
regulations. In light of the varying size, structure, and expertise of
recipients, and because relevancy determinations are an integral part
of a recipient's grievance procedures, the Department proposes defining
``relevant'' within the regulatory text to provide clarity for
recipients, students, and others involved in a recipient's grievance
procedures, and to assist those recipients that may not have
substantial experience applying this legal concept.
The Department proposes setting out in the regulations the general
principle that questions and evidence are relevant when they are
related to the allegations of sex discrimination under investigation as
part of a recipient's grievance procedures. Although the Department
drew a distinction in the preamble to the 2020 amendments between
evidence that is directly related to the allegations and relevant
evidence, id. at 30304, OCR received comments through the June 2021
Title IX Public Hearing that this distinction is not well delineated
and is confusing. The Department proposes merging these concepts by
defining ``relevant'' as evidence related to the allegations of sex
discrimination. This proposed definition would clarify for recipients
and others that questions are relevant when they seek evidence that may
aid in showing whether the alleged sex discrimination (i.e., the
alleged sex-based harassment or other conduct that could constitute sex
discrimination under Title IX) occurred, and that evidence is relevant
when it may aid a decisionmaker in determining whether that alleged sex
discrimination occurred. If a question or evidence is related to the
allegations but is not helpful for determining whether the alleged sex
discrimination occurred, that question or piece of evidence would not
qualify as relevant.
As explained in greater detail in the discussion of proposed Sec.
106.45(b)(7), the Department also proposes identifying three categories
of evidence, as well as questions seeking this evidence, as
impermissible regardless of relevance. The current regulations include
similar protections against any use of evidence in these three
categories but do so in several different provisions. The Department
proposes moving these provisions to proposed Sec. 106.45(b)(7) for
ease of reference and to make clear to recipients and others that these
types of evidence are completely excluded from a recipient's grievance
procedures. As explained in greater detail in the discussion of
proposed Sec. 106.45(b)(7), the Department also proposes minor changes
to the three types of evidence that are not permitted regardless of
relevance.
First, proposed Sec. 106.45(b)(7)(i) would provide that evidence
that is protected under a privilege as recognized by Federal or State
law (e.g., attorney-client privilege, doctor-patient privilege, spousal
privilege) would not be permitted and must not be accessed, considered,
disclosed, or otherwise used in a recipient's grievance procedures--
unless the person holding the privilege has waived it voluntarily in a
manner permitted in the recipient's jurisdiction. A similar prohibition
is included at current Sec. 106.45(b)(1)(x).
Second, proposed Sec. 106.45(b)(7)(ii) would provide that a
party's records that are made or maintained by a physician,
psychologist, or other recognized professional or paraprofessional in
connection with the provision of treatment to the party would not be
permitted and must not be accessed, considered, disclosed, or otherwise
used in the grievance procedures without the party's consent for use in
the recipient's grievance procedures. Any consent must be voluntary and
in writing. A similar prohibition is included at current Sec.
106.45(b)(5)(i).
Third, proposed Sec. 106.45(b)(7)(iii) would provide that evidence
related to
[[Page 41420]]
the complainant's sexual interests would not be permitted in a
recipient's grievance procedures. Proposed Sec. 106.45(b)(7)(iii)
would also provide that evidence related to the complainant's prior
sexual conduct would not be permitted in a recipient's grievance
procedures unless it is offered to prove that someone other than the
respondent committed the alleged conduct or to prove consent with
evidence concerning specific incidents of the complainant's prior
sexual conduct with the respondent. Similar prohibitions appear at
current Sec. 106.45(b)(6)(i) and (ii). Proposed revisions to these
prohibitions, such as replacing ``sexual behavior'' with ``sexual
conduct'' and replacing ``sexual predisposition'' with ``sexual
interests'' are explained in greater detail in the discussion of
proposed Sec. 106.45(b)(7). Proposed Sec. 106.45(b)(7)(iii) would
further clarify that the fact that prior consensual sexual conduct
occurred between the complainant and the respondent does not itself
demonstrate or imply the complainant's consent to the alleged sex-based
harassment or preclude determination that sex-based harassment
occurred.
Section 106.2 Definition of ``Respondent''
Current regulations: Section 106.30(a) defines a ``respondent'' as
an individual who has been reported to be the perpetrator of conduct
that could constitute sexual harassment.
Proposed regulations: The Department proposes moving the definition
of ``respondent'' from Sec. Sec. 106.30(a) to 106.2 with minor
revisions. The Department proposes defining a ``respondent'' as an
individual who is alleged to have violated the recipient's prohibition
on sex discrimination.
Reasons: The definition of ``respondent'' in the current
regulations is limited to persons who may have engaged in conduct that
could constitute sexual harassment. As the proposed regulations would
require a recipient to initiate its grievance procedures in response to
a complaint of any form of sex discrimination, consistent with Title
IX, the Department proposes revising the definition of ``respondent''
to include a person who is alleged to have violated a recipient's
prohibition on sex discrimination as opposed to a person who may have
engaged in conduct that could constitute sexual harassment. Under
proposed Sec. 106.8(b)(1), a recipient would be required to ``adopt
and publish a policy stating that it does not discriminate on the basis
of sex and prohibits sex discrimination in any education program or
activity that it operates.'' The Department's current view is that it
is more accurate to frame the allegations against a respondent in the
context of violating the recipient's prohibition on sex discrimination
because this prohibition on sex discrimination is directly tied to the
recipient's obligation under Title IX to operate its education program
or activity free from sex discrimination. A determination that the
respondent violated the recipient's prohibition would amount to a
determination that sex discrimination occurred, which in turn would
obligate the recipient under proposed Sec. 106.44(a) to take prompt
and effective action to end any sex discrimination that has occurred in
its education program or activity, prevent its recurrence, and remedy
its effects.
The Department would recognize in proposed Sec. 106.6(g) that a
parent, guardian, or other authorized legal representative may have a
legal right to act on behalf of a respondent. This approach is
consistent with current Sec. 106.6(g), which states that the Title IX
regulations must not be ``read in derogation of any legal right of
parent or guardian'' to act on behalf of a respondent. As explained in
the preamble to the 2020 amendments, although the student would be the
respondent, in such situations involving a minor, ``the parent or
guardian, must be permitted to exercise the rights granted to the party
. . . whether such rights involve requesting supportive measures or
participating in the process outlined in the recipient's grievance
process.'' 85 FR 30453. The Department further explained in the
preamble to the 2020 amendments, that ``the parent or guardian must be
permitted to accompany the student to meetings, interviews, and
hearings during a grievance process to exercise rights on behalf of the
student, while the student's advisor of choice may be a different
person from the parent or guardian.'' Id. Accordingly, under proposed
Sec. 106.6(g), the parent, guardian, or other authorized legal
representative may have a legal right to act on a student respondent's
behalf; however, the student would remain the respondent.
The Department also notes that, consistent with the current
regulations, a third party may be a respondent to a complaint of sex
discrimination, including sex-based harassment, under these proposed
regulations. The Department highlighted examples of a recipient's
response to complaints involving third-party complainants and
respondents in the preamble to the 2020 amendments and explained that
the ``regulations require a recipient to respond to sexual harassment
whenever the recipient has notice of sexual harassment that occurred in
the recipient's own education program or activity, regardless of
whether the complainant or respondent is an enrolled student or an
employee of the recipient.'' Id. at 30488.
Section 106.2 Definitions of ``Supportive Measures,'' ``Disciplinary
Sanctions,'' and ``Remedies''
Current regulations: The Title IX regulations, at Sec. 106.30,
define ``supportive measures'' as non-disciplinary, non-punitive
individualized services offered as appropriate, as reasonably
available, and without fee or charge to the complainant or the
respondent before or after the filing of a formal complaint or when no
formal complaint has been filed. The regulations state that such
measures are designed to restore or preserve equal access to the
recipient's education program or activity, without unreasonably
burdening the other party, including measures designed to protect the
safety of all parties or the recipient's educational environment, or
deter the respondent from engaging in sexual harassment. The current
regulations include a non-exhaustive list of certain types of measures
that a recipient can provide as supportive measures. Current Sec.
106.30 also requires a recipient to maintain as confidential any
supportive measures it provides, except to the extent such
confidentiality would impair the recipient's ability to provide the
supportive measures. Finally, the current regulations state that the
Title IX Coordinator is responsible for coordinating the effective
implementation of supportive measures.
The current regulations do not define ``disciplinary sanctions'' or
``remedies.'' The term ``remedies'' is used in current Sec.
106.45(b)(i), which states that a recipient must treat ``the
complainant and respondent equitably by providing remedies to a
complainant where a determination of responsibility for sexual
harassment has been made against the respondent, and by following a
grievance process that complies with this section before the imposition
of any disciplinary sanctions or other actions that are not supportive
measures as defined in Sec. 106.30, against a respondent.'' The
current regulations explain that remedies ``must be designed to restore
or preserve equal access to the recipient's education program or
activity'' and may include the same individualized services described
in Sec. 106.30 as supportive
[[Page 41421]]
measures. 34 CFR 106.45(b)(i). Finally, they provide that ``remedies
need not be non-disciplinary or non-punitive and need not avoid
burdening the respondent.'' Id.
Proposed regulations: The Department proposes to define two
related, but distinct, terms--``disciplinary sanctions'' and
``remedies''--and to retain the current definition of ``supportive
measures'' with some edits. The Department proposes adding definitions
of ``disciplinary sanctions'' and ``remedies'' to provide clarity for
recipients as to the meanings of these terms as they are used in the
Department's Title IX regulations and to help ensure consistency in how
disciplinary sanctions and remedies are utilized by recipients under
Title IX.
The Department proposes retaining the current definition of
``supportive measures'' as non-disciplinary, non-punitive,
individualized measures, offered as appropriate, as reasonably
available, without unreasonably burdening a party, and without fee or
charge to the complainant or respondent, with some clarifying
amendments. In addition, the Department proposes moving the following
provisions from the definition of ``supportive measures'' to other
provisions in the proposed regulations: the range of supportive
measures to proposed Sec. 106.44(k)(1); and the Title IX Coordinator's
obligation to offer and coordinate supportive measures to proposed
Sec. 106.44(f)(3). A recipient's obligation to maintain as
confidential any supportive measures it provides would be moved to
proposed Sec. 106.44(g)(5) and modified to permit a recipient to
provide information about supportive measures to persons other than the
complainant or respondent as necessary to provide the measure, or to a
party only if necessary to restore or preserve the other party's access
to the recipient's education program or activity. Finally, the
Department proposes revising the definition to clarify that supportive
measures may be offered to restore or preserve that party's access to
the recipient's education program or to provide support during the
recipient's grievance procedures in Sec. 106.45, and if applicable
Sec. 106.46, or during the informal resolution process in Sec.
106.44(k). The Department would also clarify that supportive measures
can include temporary measures that burden a respondent during the
pendency of a grievance procedures, but only when such measures are
imposed for non-punitive and non-disciplinary reasons and are designed
to protect the safety of the complainant or the recipient's educational
environment. And, as explained in greater detail in the discussion of
proposed Sec. 106.44(g), the Department proposes including additional
provisions to guide the coordination of supportive measures, including
the requirement that these temporarily burdensome measures may be
imposed only if the respondent is given the opportunity to seek
modification or reversal of them.
The Department proposes defining ``disciplinary sanctions'' as
consequences imposed on a respondent following a determination that the
respondent violated the recipient's prohibition on sex discrimination.
As in the current regulations, the Department's proposed definition of
``disciplinary sanctions'' would recognize that a recipient must follow
grievance procedures consistent with regulatory requirements before
imposing disciplinary sanctions on a respondent. The proposed
definition would encompass disciplinary sanctions applied when a
recipient determines that the respondent has violated any aspect of the
recipient's prohibition on sex discrimination after following grievance
procedures under proposed Sec. 106.45, and if applicable proposed
Sec. 106.46. Under the proposed regulations, disciplinary sanctions
may be applied to a respondent who is a student, employee, or third
party.
Finally, the Department proposes including a definition of
``remedies'' in Sec. 106.2 to clarify that remedies are measures
provided, as appropriate, to a complainant or any other person the
recipient identifies as having had equal access to the recipient's
education program or activity limited or denied by sex discrimination.
The proposed definition would also clarify that remedies are designed
to restore or preserve access to the recipient's education program or
activity after a recipient determines that sex discrimination occurred.
Reasons: The Department proposes these definitions to provide
clarity and ensure that recipients are aware of their obligations under
Title IX. All three definitions describe ways in which a recipient may
provide effective protection against and response to sex
discrimination. The Department emphasizes that a recipient must take
into account the distinct timing, purpose, and considerations of
supportive measures, disciplinary sanctions, and remedies before
providing or imposing them, as their definitions make clear:
Supportive measures are intended to preserve or restore a
complainant's or respondent's access to the recipient's education
program or activity and may be provided to the complainant or
respondent, as appropriate, after the Title IX Coordinator has been
notified of conduct that may constitute sex discrimination under Title
IX;
Disciplinary sanctions are consequences imposed on a
respondent in response to a determination that a respondent violated
the recipient's prohibition on sex discrimination and may be applied to
a respondent only after a recipient has made this determination; and
Remedies are intended to preserve or restore access to the
recipient's education program or activity and may be provided to a
complainant or other person after a recipient determines that sex
discrimination occurred, including when a recipient engages in sex
discrimination through its own action or inaction.
Supportive Measures. The Department proposes maintaining the
existing definition of ``supportive measures'' with revisions to
increase readability and clarity and to align this section with other
modifications the Department proposes making to the regulations. The
Department proposes retaining in the definition of ``supportive
measures'' that such measures are non-disciplinary and non-punitive,
but proposes using the term ``measures'' rather than using the term
``services'' that is in the current definition. The Department proposes
making this change to avoid confusion that may be caused by the current
regulations' use of both ``services'' and ``measures'' to describe
supportive measures.
The Department also proposes that a recipient must offer supportive
measures, as appropriate, to a complainant or respondent for any type
of conduct that constitutes sex discrimination, including but not
limited to sex-based harassment and retaliation. The Department
proposes retaining the language that supportive measures are designed
to restore or preserve a party's access to the recipient's education
program or activity. At the same time, the Department proposes
clarifying that a supportive measure that may burden a respondent
during the pendency of a grievance procedure may be imposed as a
temporary supportive measure, but only when such a supportive measure
is imposed for non-punitive and non-disciplinary reasons and is
designed to protect the safety of the complainant or the recipient's
educational environment and, as the discussion of proposed Sec.
106.44(g) clarifies, only if the respondent is given an opportunity to
seek modification or reversal of such a
[[Page 41422]]
measure. As explained in greater detail in the discussion of proposed
Sec. 106.44(g), a recipient would also be permitted to impose
supportive measures that burden a respondent even if the specific
measure imposed is also available as a disciplinary sanction, but only
if such a supportive measure is not imposed for punitive or
disciplinary reasons and is intended to restore or preserve the
complainant's access to the recipient's education program or activity.
In light of the potential harm to a student respondent's education from
unnecessary or inappropriate implementation of such temporarily
burdensome supportive measures, however, a recipient would not be
required to impose supportive measures that burden a respondent, but
rather would be permitted to impose such measures if the recipient
deems the measures appropriate to the circumstances of that case. When
imposing supportive measures that burden a respondent, the recipient
would be required to engage in a fact-specific inquiry to determine
whether burdensome supportive measures are necessary as part of its
grievance procedures under proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, and if so, which supportive measures would be
the least restrictive of the respondent's access to the program or
activity while still ensuring nondiscriminatory access for the
complainant. As proposed, supportive measures that burden a respondent
would terminate once the recipient has determined whether sex
discrimination occurred at the conclusion of a grievance procedure.
Because supportive measures that burden a respondent may be imposed
only during the pendency of a recipient's grievance procedures, they
would not be available during an informal resolution process under
proposed Sec. 106.44(k).
The Department also proposes adding to the existing definition of
``supportive measures'' that, in addition to the purposes set out in
the current regulations and discussed above, supportive measures that
do not burden the respondent may be necessary to provide a party with
support through the recipient's grievance procedures in proposed Sec.
106.45, and if applicable Sec. 106.46, as well as through the informal
resolution process in proposed Sec. 106.44(k). This addition to the
existing definition acknowledges that a party may need supportive
measures in order to participate fully in and have equal access to a
recipient's grievance procedures, whether formal or informal.
The Department proposes moving the list of examples of supportive
measures from the definition of ``supportive measures'' to proposed
Sec. 106.44(g)(1), which would require a Title IX Coordinator, upon
being notified of conduct that may constitute sex discrimination under
Title IX, to offer supportive measures to complainants and, if
appropriate, respondents. As explained in the discussion of that
section, the list is intended to be illustrative and non-exhaustive. In
addition, the Department proposes removing from the definition of
``supportive measures'' that a ``recipient must maintain as
confidential any supportive measures provided to the complainant or
respondent, to the extent that maintaining such confidentiality would
not impair the ability of the recipient to provide the supportive
measures'' and moving this clarification of a recipient's obligation to
maintain the confidentiality of supportive measures that it provides,
subject to limited exceptions, to proposed Sec. 106.44(g)(5).
Finally, the Department proposes removing from the definition of
``supportive measures'' the requirement that the Title IX Coordinator
is responsible for coordinating the effective implementation of
supportive measures. Instead, the Department proposes moving this
requirement to proposed Sec. 106.44(g)(6), which would state that a
Title IX Coordinator would be responsible for offering and coordinating
supportive measures.
Disciplinary Sanctions. The Department proposes adding a definition
of ``disciplinary sanctions'' to Sec. 106.2 to clarify what
constitutes a disciplinary sanction and when imposition of a
disciplinary sanction is appropriate.
The proposed definition of ``disciplinary sanctions'' explains that
disciplinary sanctions are consequences imposed on a respondent for
violating the recipient's prohibition on sex discrimination, but it
does not specify the consequences a recipient can or must impose. The
proposed definition of ``disciplinary sanctions'' would apply to all
determinations that a respondent has violated the recipient's
prohibition on sex discrimination. In contrast, the current regulations
address disciplinary sanctions only in relation to sexual harassment,
following a grievance process under Sec. 106.45 in response to a
formal complaint of sexual harassment. The proposed definition would
accord with the Department's intent to enable full implementation of
Title IX's purpose. Consistent with the current regulations, the
proposed regulations would not permit a recipient to impose
disciplinary sanctions on a respondent prior to the conclusion of the
grievance procedures because imposing a non-temporary or punitive
consequence before reaching a determination would be contrary to the
requirement to have an adequate, reliable, and impartial investigation
and resolution of complaints under proposed Sec. 106.45(f) or the
requirement to include a presumption that the respondent is not
responsible for the alleged conduct until a determination whether sex
discrimination occurred is made at the conclusion of the recipient's
grievance procedures for complaints of sex discrimination under
proposed Sec. 106.45(b)(3).
Remedies. The Department's proposed regulations would provide a
definition of ``remedies'' that ensures effective response to sex
discrimination and consistency in available remedies for all forms of
discrimination. The Department proposes this change following
consideration of comments received as part of the June 2021 Title IX
Public Hearing regarding the limited scope of remedies available under
the current regulations. Stakeholders asked OCR to clarify the role of
remedies in ensuring that students have access to a nondiscriminatory
education program or activity following a determination that sex
discrimination occurred or that the recipient's own action or inaction
resulted in sex discrimination, including but not limited to sex-based
harassment.
The Department's proposed definition would also ensure that
remedies are available to restore and preserve access to the
educational environment when any form of sex discrimination, not only
sexual harassment, disrupts that educational environment. For example,
following a determination that a teacher retaliated against a student
who made a Title IX complaint by disciplining that student in violation
of the recipient's prohibition on sex discrimination, that student may
be eligible for remedies, such as changes to the student's transcript
to remove the disciplinary notation, or a classroom change so that the
student is no longer in that teacher's class.
Moreover, the Department recognizes that persons other than the
complainant who are participating or attempting to participate in a
recipient's education program or activity where sex discrimination
occurred may also have their access to the education program or
activity limited or denied as a result of that sex discrimination. For
this reason, the Department proposes clarifying in the regulations that
these individuals may be able to receive remedies. For example, if a
high school coach engages
[[Page 41423]]
in sex-based harassment of a student-athlete in front of the student-
athlete's teammates who then notify the school of the sex-based
harassment, and the school determines that sex-based harassment
occurred, it may be appropriate to provide remedies to these student-
athletes who were also exposed to the sex-based harassment if their
equal access to the education program or activity was denied or limited
by, for example, the psychological impact of the harassment they
witnessed. Remedies in the form of counseling or other supports may be
appropriate for these students following the school's determination.
The proposed regulations also recognize that remedies may be
appropriate when the recipient's own action or inaction in response to
an allegation of sex discrimination resulted in a distinct Title IX
violation. For example, if a student reported to the Dean of Students
that another student sexually assaulted them on campus and the
recipient failed to take the necessary action, the recipient's inaction
would likely violate Title IX. See, e.g., Davis, 526 U.S. at 643;
Jackson, 544 U.S. at 173-74. In this example, if the student, as a
result of the recipient's failure to act after receiving the student's
report, has to continue to attend classes with the respondent and drops
out of these classes due to further sex-based harassment or peer
retaliation, then the recipient would need to provide remedies to the
student to restore or preserve their access to the recipient's
education program or activity. These remedies could include, for
example, counseling, tutoring, or additional time to complete an
assignment to address limitations on the student's access to their
education caused by the recipient's failure to meet the requirements of
Title IX. In addition, if the recipient's initial steps to address the
sex-based harassment were insufficient, then it would be required to
take additional steps and provide additional remedies to the student to
fulfill its obligation under proposed Sec. 106.44. For example, if a
recipient failed to take the steps required under proposed Sec. 106.44
upon being notified that a student was sexually assaulted by another
student on campus because of insufficient Title IX Coordinator
training, it would need, at minimum, to revise its Title IX Coordinator
training on the recipient's obligation to address sex discrimination
and the Title IX Coordinator's responsibilities in coordinating the
recipient's actions to comply with that obligation as a remedy for its
own inaction and, in addition, would need to fully comply with its
obligations under proposed Sec. 106.44 to prevent the recurrence of
such sex discrimination and remedy its effects.
Examples of possible measures a recipient may need to offer a
student to remedy the effects of sex-based harassment, to remedy the
additional harm caused by a recipient's action or inaction, or to
restore or preserve a student's continued access to a recipient's
education program or activity after a determination that sex-based
harassment occurred could include: ensuring that a complainant can move
safely between classes and while at school or on campus such as by
providing a campus escort or allowing a student to park in the
teacher's parking lot; making changes to class schedules and
extracurricular activities to ensure the complainant and respondent are
separated; making adjustments to student housing; providing services
including medical support and counseling; providing academic resources
and support; reviewing any disciplinary actions taken against the
complainant to determine whether there is a causal connection between
the sex-based harassment and the misconduct; providing reimbursement
for professional counseling services; making tuition adjustments; and
any other remedies it deems appropriate.
Remedies provided following a determination that sex discrimination
occurred may include measures that were provided as supportive measures
during the pendency of the investigation. A temporary restriction on
contact or removal from an activity that was imposed as a supportive
measure thus may be imposed as a remedy after a finding that sex
discrimination occurred if it would be necessary to preserve or restore
the complainant's access. Because the remedy would be instituted
following a determination that sex discrimination occurred, its
function would be to remedy past discrimination rather than provide a
temporary protection of the complainant's access while the grievance
procedures are underway.
Some actions taken by a recipient could also serve as both a remedy
and a disciplinary sanction, e.g., the suspension of a respondent who
engaged in sex discrimination may aid in restoring a complainant's
access to the recipient's education program or activity while also
serving as a disciplinary consequence for the respondent's violation of
the recipient's policy.
Neither remedies nor disciplinary sanctions would be available
under informal resolution in proposed Sec. 106.44(k) because there
would be no final determination that sex discrimination occurred in the
informal resolution process. As described in greater detail in the
discussion of proposed Sec. 106.44(k), the respondent may agree to
terms of a voluntary agreement that may otherwise constitute remedies
or disciplinary sanctions had the recipient determined that sex
discrimination occurred under the recipient's grievance procedures.
Section 106.30(a) Removal of Reference to a Definition of ``consent''
Current regulations: Current Sec. 106.30(a) states that the
Assistant Secretary will not require recipients to adopt a particular
definition of ``consent'' with respect to sexual assault, as referenced
in this section.
Proposed regulations: The Department proposes removing this
provision from the definitions section.
Reasons: The Department proposes removing Sec. 106.30 as a whole
and proposes moving some provisions from that section to other
provisions in the proposed regulations. The Department proposes
removing the current provision addressing consent from the regulations
altogether because it is unnecessary and confusing to include language
in the definitions section stating that the Department declines to
define a certain term.
The Department's position remains, as stated in the preamble to the
2020 amendments, that ``the definition of what constitutes consent for
purposes of sexual assault within a recipient's educational community
is a matter best left to the discretion of recipients, many of whom are
under State law requirements to apply particular definitions of consent
for purposes of campus sexual misconduct policies.'' 85 FR 30124. For
these reasons, in the 2020 amendments, the Department ``decline[d] to
impose a federalized definition of consent for Title IX purposes''
despite requests by some stakeholders to do so. Id. at 30125. In
response to those requests, the Department instead included a provision
for consent in the definitions section stating that the Department
would not require recipients to adopt a particular definition of
consent.
[[Page 41424]]
D. Administrative Requirements
Section 106.8 Designation of Coordinator, Adoption and Publication of
Nondiscrimination Policy and Grievance Procedures, Notice of
Nondiscrimination, Training, and Recordkeeping
Current regulations: The section heading is ``Designation of
coordinator, dissemination of policy, and adoption of grievance
procedures.''
Proposed regulations: The Department proposes changing this section
heading to ``Designation of coordinator, adoption and publication of
nondiscrimination policy and grievance procedures, notice of
nondiscrimination, training, and recordkeeping.''
Reasons: The proposed section heading would more accurately
describe the content of the section.
Section 106.8(a) Designation of a Title IX Coordinator
Current regulations: Section 106.8(a) requires each recipient to
designate at least one employee as the Title IX Coordinator to
coordinate its efforts to comply with Title IX's statutory and
regulatory requirements. Current Sec. 106.8(a) requires a recipient to
notify applicants for admission and employment, students, parents or
legal guardians of elementary and secondary school students, employees,
and all unions or professional organizations holding collective
bargaining or professional agreements with the recipient, of the name
or title, office address, email address, and telephone number of the
employee or employees designated as the Title IX Coordinator. Current
Sec. 106.8(a) also states that any person may report sex
discrimination, including sexual harassment, to the Title IX
Coordinator using a variety of means at any time.
Proposed regulations: The Department proposes adding two new
headings to the section for clarity: ``Title IX Coordinator'' and
``Delegation to designees.'' Proposed Sec. 106.8(a)(1) would maintain
the requirement that a recipient must designate and authorize at least
one employee as the ``Title IX Coordinator'' to coordinate its efforts
to comply with the recipient's responsibilities under the Department's
Title IX regulations. In proposed Sec. 106.8(a)(2), the Department
proposes adding that, as appropriate, the Title IX Coordinator may
assign one or more designees to carry out some of the recipient's
responsibilities, but that one Title IX Coordinator must retain
ultimate oversight over those responsibilities.
The Department proposes removing language from the existing
provision that requires a recipient to provide the contact information
for its Title IX Coordinator and that includes specific instructions
for how to report sex discrimination to the Title IX Coordinator.
Instead, the Department proposes moving the requirement that a
recipient must provide notice of nondiscrimination, which must include
the contact information for the Title IX Coordinator, how to report
information that may constitute sex discrimination under Title IX, how
to make a complaint of sex discrimination, and how to locate the
recipient's grievance procedures, to proposed Sec. 106.8(c).
Reasons: The Department proposes revisions to Sec. 106.8(a) and
(c), to afford greater clarity about a recipient's core obligation to
designate a Title IX Coordinator (proposed Sec. 106.8(a)), adopt and
publish a nondiscrimination policy and grievance procedures for
complaints of sex discrimination and any action prohibited by the
regulations (proposed Sec. 106.8(b)), and provide notice of the
contact information for its Title IX Coordinator, as well as notice of
its nondiscrimination policy and grievance procedures to individuals
entitled to receive notification via specific means of publication
(proposed Sec. 106.8(c)). As part of this restructuring, the
Department proposes limiting Sec. 106.8(a)(1) to the requirement to
designate a Title IX Coordinator. The Department proposes moving the
requirement that a recipient notify certain people of the contact
information for its Title IX Coordinator to the requirement regarding
providing a notice of nondiscrimination, which would also include
notice of a recipient's nondiscrimination policy and grievance
procedures, as described in proposed Sec. 106.8(c)(1)(i) through (v).
The Department anticipates that consolidating all of the required
contents of the notice of nondiscrimination into proposed Sec.
106.8(c)(1) will make it easier for recipients to understand how to
comply with these requirements.
Designees. The Department proposes revisions to Sec. 106.8(a) to
expressly permit a recipient to assign one or more designees to carry
out some of the Title IX Coordinator's responsibilities, as long as one
individual, referred to as the ``Title IX Coordinator,'' retains
ultimate authority to coordinate the recipient's compliance with Title
IX and oversight over those designated responsibilities. This approach
would enable a recipient that enrolls large numbers of students,
employs large numbers of employees, provides services in multiple
locations, or engages in a large variety of activities to carry out its
various Title IX responsibilities effectively. For example, in the
elementary school and secondary school setting, a school district could
designate the Title IX Coordinator and authorize that person to appoint
or oversee building-level coordinators for each school building within
the district. These building-level coordinators could carry out some of
the Title IX Coordinator's duties, such as providing training or
ensuring that grievance procedures are administered correctly in that
school building. Alternatively, a Title IX Coordinator could assign a
designee to oversee several buildings, or a unit, such as all
elementary schools in a district or a medical school within a
university. Similarly, a Title IX Coordinator could have designees that
oversee compliance with different aspects of the recipient's Title IX
obligations, such as those related to athletics, pregnant and parenting
students, financial assistance, or sex-based harassment. In each
example, the Title IX Coordinator, not one particular designee or group
of designees, would retain ultimate authority to coordinate the
recipient's compliance with Title IX and oversight over each of the
designees' responsibilities and over the recipient's overall compliance
with Title IX.
By having one Title IX Coordinator oversee designees, the Title IX
Coordinator would ensure consistent Title IX compliance across the
recipient's education program or activity. This structure may also help
the Title IX Coordinator identify trends across multiple programs or
activities of the recipient and coordinate training or educational
programming responsive to those trends. For example, if students at
three different schools report sex-based harassment on the school bus,
the Title IX Coordinator, who is aware of each discrete incident, may
realize that these incidents are not isolated, but rather, part of a
larger trend indicating a need for better training, supervision, or
staffing on school buses across the district.
In addition, this oversight structure is consistent with the view
the Department expressed in the preamble to the 2020 amendments, which
stressed that a recipient must ensure that a Title IX Coordinator is
not ``designated `in name only' '' and instead is fully authorized to
coordinate a recipient's efforts to comply with Title IX. 85 FR 30464.
A recipient must ensure that the Title IX Coordinator is effective in
this role by ensuring that the Title IX Coordinator has the appropriate
authority, support, and resources to coordinate the
[[Page 41425]]
recipient's Title IX compliance efforts. In light of this proposed
revision to Sec. 106.8(a), every reference to the ``Title IX
Coordinator'' in this preamble, other than in the discussion of
proposed Sec. 106.8(a)(1) and (2), should be understood to include the
Title IX Coordinator and any designees.
Notification requirements. The Department proposes deleting the
specific instructions for how to report sex discrimination to the Title
IX Coordinator from current Sec. 106.8(a). The Department added the
instructions as part of the 2020 amendments; however, as explained in
greater detail in the discussion of the notice of nondiscrimination in
proposed Sec. 106.8(c), the Department proposes adding to proposed
Sec. 106.8(c)(1)(v) a requirement that a recipient include in the
content of its notice of nondiscrimination how to report information
about conduct that may constitute sex discrimination under Title IX,
how to make a complaint of sex discrimination under the regulations,
and how to locate the recipient's grievance procedures as described in
Sec. 106.45, and if applicable Sec. 106.46. In addition, the
Department proposes including in proposed Sec. 106.44(c) that a
recipient must impose specific notification requirements upon various
employees when the employee has information about conduct that may
constitute sex discrimination under Title IX. These notification
requirements are explained in greater detail in the discussion of
proposed Sec. 106.44(c).
Section 106.8(b) Adoption and Publication of Nondiscrimination Policy
and Grievance Procedures
Current regulations: Section 106.8(b)(1) requires a recipient to
notify persons entitled to notification under current Sec. 106.8(a)
that the recipient does not discriminate on the basis of sex in its
education program or activity and that it is required by Title IX not
to discriminate in that manner. Current Sec. 106.8(b)(2) requires each
recipient to prominently display contact information for its Title IX
Coordinator, as well as its Title IX nondiscrimination notice, on its
website and in each handbook or catalog. Current Sec. 106.8(c)
requires a recipient to adopt and publish grievance procedures for the
prompt and equitable resolution of student and employee complaints
alleging sex discrimination and a grievance process for formal
complaints of sexual harassment under current Sec. 106.45.
Proposed regulations: The Department proposes consolidating the
requirements to adopt and publish a nondiscrimination policy and
grievance procedures into proposed Sec. 106.8(b). The consolidation
would add two headings to clarify that a recipient must adopt and
publish a nondiscrimination policy under paragraph (b)(1) and grievance
procedures for the prompt and equitable resolution of any action that
would be prohibited by Title IX or the regulations, under paragraph
(b)(2). The Department proposes adding an explicit requirement in
proposed Sec. 106.8(b)(1) that a recipient must adopt and publish a
policy stating it does not discriminate based on sex and prohibits sex
discrimination in any education program or activity that it operates.
The Department also proposes moving the requirement that a recipient
adopt and publish grievance procedures consistent with the requirements
of Sec. 106.45, and if applicable Sec. 106.46, that provide for the
prompt and equitable resolution of complaints alleging any action that
would be prohibited by the regulations from current Sec. 106.8(c) to
proposed Sec. 106.8(b)(2).
As part of its proposed restructuring of Sec. 106.8(a) through
(c), the Department proposes moving the specific requirements in
current Sec. 106.8(b) regarding the persons entitled to receive
notification of the recipient's notice of nondiscrimination as well as
the publications in which a recipient must include its notice of
nondiscrimination to proposed Sec. 106.8(c) and 106.8(c)(2),
respectively.
Reasons: The Department proposes changes to Sec. 106.8(b) to
simplify and clarify a recipient's obligations to adopt and publish a
nondiscrimination policy and Title IX grievance procedures.
Adoption and publication of nondiscrimination policy: Although the
Department has long required a recipient to notify certain individuals
of its nondiscrimination policy, the current Title IX regulations do
not make explicit that a recipient must adopt such a policy. The
proposed addition to Sec. 106.8(b)(1) provides this clarification. The
process for adoption would vary by recipient and jurisdiction. For
example, it could include a vote by a board of education for a school
district or by a governing board for a postsecondary institution or
adoption by leadership within the school district or postsecondary
institution. As discussed in the following section regarding proposed
Sec. 106.8(c), although the Department proposes clarifying the
requirements for publishing a ``notice of nondiscrimination''--which
would include information on how persons can locate the recipient's
nondiscrimination policy and grievance procedures and specific
requirements on where that notice must be published--the Department
does not propose specific requirements for how a recipient must publish
its nondiscrimination policy. A recipient may choose to include its
nondiscrimination policy in full on its website or in printed
publications such as a handbook or catalog. In addition, a recipient
may choose to print its nondiscrimination policy and make it available
in a specific, designated office such as a guidance counselor's office,
a Title IX Coordinator's office, or a Dean of Students office.
Adoption and publication of grievance procedures. The Department
proposes moving the requirement that a recipient must adopt grievance
procedures that provide for the prompt and equitable resolution of
complaints alleging any action that would be prohibited by Title IX and
the regulations from current Sec. 106.8(c) to proposed Sec.
106.8(b)(2). The Department further proposes revisions to proposed
Sec. 106.8(b)(2) to clarify that a recipient's grievance procedures
must be published and must provide for the resolution of complaints
made by a student, employee, third party participating or attempting to
participate in the recipient's education program or activity, or the
Title IX Coordinator alleging any action that would violate Title IX or
its regulations. The Department proposes adding Sec. 106.8(b)(2) to
clarify that a recipient must adopt and publish grievance procedures
under Title IX to address all forms of sex discrimination, including
sex-based harassment, consistent with the requirements of Sec. 106.45,
and if applicable Sec. 106.46.
The Department's proposed revisions would apply proposed Sec.
106.45 as the framework for all complaints of sex discrimination,
including sex-based harassment, for all recipients. The Department
proposes additional requirements in proposed Sec. 106.46 for grievance
procedures that would apply only to complaints of sex-based harassment
at postsecondary institutions in which at least one party is a student.
Rather than referring to the grievance procedures for complaints of
sexual harassment as a grievance ``process,'' the Department proposes
making a non-substantive change to refer to the procedures required
under both proposed Sec. Sec. 106.45 and 106.46 as grievance
``procedures,'' consistent with the language used in proposed
Sec. Sec. 106.45 and 106.46.
As with proposed Sec. 106.8(b)(1), under proposed Sec.
106.8(b)(2), a recipient may adopt the required grievance procedures by
following its typical policy approval
[[Page 41426]]
process approval. For some recipients, grievance procedures that comply
with the requirements of proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, will be approved by a vote of the recipient's
board of education or governing board. For others, a recipient's
administrative staff will provide approval. Also, similar to proposed
Sec. 106.8(b)(1), although the Department proposes clarifying the
requirements for a recipient to provide and publish a notice of
nondiscrimination under proposed Sec. 106.8(c), the Department would
further leave to a recipient's discretion where and how to publish its
grievance procedures.
Section 106.8(c) Notice of Nondiscrimination
Current regulations: Section 106.8(a) requires a recipient to
notify applicants for admission and employment, students, parents or
legal guardians of elementary school and secondary school students,
employees, and all unions or professional organizations holding
collective bargaining or professional agreements of the name or title,
office address, electronic mail address, and telephone number of the
employee or employees designated as the Title IX Coordinator. Current
Sec. 106.8(b) requires a recipient to notify the same persons listed
in paragraph (a) that it does not discriminate on the basis of sex in
the education program or activity that it operates, that it is required
by Title IX and the regulations not to discriminate in such a manner,
that the requirement not to discriminate in the education program or
activity extends to admission and employment, and that inquiries about
the application of Title IX and the regulations to such recipient may
be referred to the recipient's Title IX Coordinator, to the Assistant
Secretary, or both. Current Sec. 106.8(b)(2) requires each recipient
to prominently display contact information for its Title IX
Coordinator, as well as its Title IX nondiscrimination notice, on its
website and in each handbook or catalog. Current Sec. 106.8(c)
requires a recipient to notify the same persons listed in paragraph (a)
of its grievance procedures and grievance process, including how to
report or file a complaint of sex discrimination, how to report or file
a formal complaint of sexual harassment, and how the recipient will
respond.
Proposed regulations: The Department proposes changing the heading
of proposed Sec. 106.8(c) from ``Adoption of grievance procedures'' to
``Notice of nondiscrimination.'' The Department also proposes adding
two headings--``Contents of notice of nondiscrimination'' and
``Publication of notice of nondiscrimination''--to consolidate and
clarify the persons to whom this information must be provided (proposed
Sec. 106.8(c)), the specific content a recipient would be required to
include in its notice of nondiscrimination, (proposed Sec.
106.8(c)(1)), and where and how a recipient must publicize its notice
of nondiscrimination (proposed Sec. 106.8(c)(2)).
Proposed Sec. 106.8(c) would require a recipient to provide a
notice of nondiscrimination to the same individuals to whom notice must
be provided under current Sec. 106.8(a): students; parents, guardians
or other authorized legal representatives of elementary school and
secondary school students; employees; applicants for admission and
employment; and all unions and professional organizations holding
collective bargaining or professional agreements with the recipient.
The Department proposes a minor change to include ``other authorized
legal representatives of elementary school and secondary school
students'' to the group of individuals entitled to receive the notice
of nondiscrimination. Proposed Sec. 106.8(c)(1) would further require
a recipient to include the following specific information in its notice
of nondiscrimination:
A statement that the recipient does not discriminate on
the basis of sex and prohibits sex discrimination in any education
program or activity that it operates, as required by Title IX and its
regulations, including in admission (unless subpart C of part 106 does
not apply) and employment (proposed Sec. 106.8(c)(1)(i));
A statement that inquiries about the application of Title
IX and the regulations to the recipient may be referred to the
recipient's Title IX Coordinator, to the Office for Civil Rights, or to
both (proposed Sec. 106.8(c)(1)(ii));
The name or title, office address, email address, and
telephone number of the recipient's Title IX Coordinator (proposed
Sec. 106.8(c)(1)(iii));
How to locate the recipient's nondiscrimination policy
under proposed Sec. 106.8(b)(1) (proposed Sec. 106.8(c)(1)(iv)); and
How to report information about conduct that may
constitute sex discrimination under Title IX, how to make a complaint
of sex discrimination under the regulations, and how to locate the
recipient's grievance procedures under proposed Sec. 106.8(b)(2),
Sec. 106.45, and if applicable Sec. 106.46 (proposed Sec.
106.8(c)(1)(v)).
In proposed Sec. 106.8(c)(2)(i), the Department would provide that
a recipient must prominently include all elements of its notice of
nondiscrimination set out in paragraphs (c)(i) through (v) in various
materials consistent with the existing provision, as well as in each
announcement, bulletin, and application form that it makes available to
persons entitled to notification under proposed Sec. 106.8(c) or that
are used for recruiting students and employees. In proposed Sec.
106.8(c)(2)(ii), the Department proposes adding a provision that, if
necessary due to the format or size of any publication referenced in
Sec. 106.8(c)(2)(i), the recipient may instead comply with Sec.
106.8(c)(2) by including in those publications a statement that the
recipient prohibits sex discrimination in any education program or
activity that it operates and that individuals may report concerns or
questions to the Title IX Coordinator, and providing the location of
the notice on the recipient's website.
Reasons: Addition of subparagraphs. For clarity, the Department
proposes revising the heading of this provision, and adding proposed
Sec. 106.8(c)(1) and 106.8(c)(2). This would divide the proposed
regulations into separate paragraphs addressing the recipients of the
notice (proposed Sec. 106.8(c)), the ``Contents of notice'' (proposed
Sec. 106.8(c)(1)) and the ``Publication of notice'' (proposed Sec.
106.8(c)(2)).
Persons entitled to notice of nondiscrimination. The Department
proposes maintaining the same group of persons entitled to receive
notice under current Sec. 106.8(a), with the addition of ``other
authorized legal representatives of elementary school and secondary
school students'' to encompass persons who are not parents or
guardians, but otherwise are authorized to act on behalf of students.
The Department also proposes revising ``legal guardian'' to
``guardian'' for consistency with proposed Sec. 106.6(g), which would
reference the rights of ``a parent, guardian, or other authorized legal
representative.''
Contents of notice of nondiscrimination. The Department proposes
maintaining some of the notice requirements in the current regulations
and adding other requirements in proposed Sec. 106.8(c)(1)(i) through
(v) to ensure that a recipient provides adequate notice of
nondiscrimination to all persons entitled to receive notice of this
information. The current regulations require a recipient to notify the
persons entitled to receive notification under Sec. 106.8(a) of the
following: (1) the contact information
[[Page 41427]]
for the recipient's Title IX Coordinator; (2) the recipient is required
by Title IX and the regulations not to discriminate on the basis of
sex; (3) the recipient is prohibited from engaging in sex
discrimination in admission and employment; (4) persons may contact the
recipient or the Assistant Secretary with inquiries about Title IX or
the application of the regulations; and (5) the recipient's grievance
procedures and how to make report or file a complaint of sex
discrimination, including sexual harassment. Although a recipient is
required under current Sec. 106.8(a) through (c) to provide notice of
all of this information, a recipient is not required to include this
information in a single policy or document. Therefore, the Department
proposes requiring recipients to streamline all of these requirements
in its notice of nondiscrimination to increase the likelihood that
persons entitled to notification of this information are aware of their
rights under Title IX and the regulations.
The Department proposes moving to proposed Sec. 106.8(c)(1)(i) the
requirement in current Sec. 106.8(b) that a recipient include in its
notice of nondiscrimination a statement that the recipient does not
discriminate on the basis of sex in its education program or activity,
that it is required by Title IX not to discriminate in such a manner,
and that it also prohibits sex discrimination in admission (unless
subpart C of part 106 does not apply) and employment. The Department
also proposes incorporating with slight modifications the requirement
from current Sec. 106.8(b)(1) into proposed Sec. 106.8(c)(1)(ii) that
a recipient notify the persons entitled to receive a notification under
Sec. 106.8(c) that inquiries about the application of Title IX and the
regulations may be made to the recipient's Title IX Coordinator, to the
Office for Civil Rights, or to both. Current Sec. 106.8(b)(1) refers
to the ``Assistant Secretary.'' The Department proposes changing this
reference to ``the Office for Civil Rights'' to afford greater clarity
for recipients and all individuals entitled to receive such
notification that they may contact OCR--in addition to or instead of
contacting the recipient--with any inquiries about Title IX or the
regulations.
The Department proposes moving the requirement that a recipient
provide notice of the name or title, office address, email address, and
telephone number of its Title IX Coordinator from current Sec.
106.8(a) to proposed Sec. 106.8(c)(1)(iii). The proposed regulations
would not prohibit a recipient from also providing the contact
information of designees. The Department's current view is that it will
be less confusing for recipients and all persons entitled to receive
notice of this information if it is included in a single notice of
nondiscrimination.
In addition, the Department proposes requiring a recipient to
include in its notice of nondiscrimination and grievance procedures
information such as a web address, a direct link, or an explanation of
how a hard copy of the recipient's nondiscrimination policy and
grievance procedures may be obtained. By including this information,
the Department would ensure that all persons entitled to notice of this
information know how they can locate a recipient's nondiscrimination
policy and grievance procedures on the recipient's website or how they
may obtain a hard copy of the nondiscrimination policy and grievance
procedures.
Finally, the Department proposes requiring a recipient to explain
in its notice of nondiscrimination how to report information about
conduct that may constitute sex discrimination under Title IX, how to
make a complaint of sex discrimination under the regulations, and how
to locate the recipient's grievance procedures under Sec. 106.45, and
if applicable Sec. 106.46. The Department recognizes that some
individuals may wish to report conduct that may constitute sex
discrimination under Title IX without making a complaint that would
initiate a recipient's grievance procedures. To afford the opportunity
for this type of reporting, the Department proposes requiring a
recipient to explain in its notice of nondiscrimination that reporting
such conduct to a recipient's Title IX Coordinator or to specific
employees as described in proposed Sec. 106.44(c), would obligate a
recipient to require its Title IX Coordinator to take further action
consistent with proposed Sec. 106.44(f).
To ensure that individuals who wish to make a complaint that
initiates a recipient's grievance procedures know how to do so, the
Department proposes that a recipient include in its notice of
nondiscrimination clear information about sex discrimination and how to
make a complaint about such discrimination, including how to locate a
recipient's grievance procedures so that a potential complainant
understands how the process will work if initiated. As the Department
explained in the preamble to the 2020 amendments, it is important to
ensure that ``people affected by a recipient's grievance procedures''
know about the grievance procedures and how to initiate them. 85 FR
30472-73. The Department further emphasizes that grievance procedures
for investigating and resolving sex discrimination complaints cannot be
prompt or equitable unless the parties whose rights are addressed
through the grievance procedures have equitable access to them. At a
minimum, this means that the parties must know that a recipient's
grievance procedures exist, how they work, and how to make a complaint.
Therefore, a recipient must ensure that its grievance procedures are
widely disseminated and written in clear, accessible, easily understood
language that is tailored to the age and background of those impacted
by the grievance procedures.
Although proposed Sec. 106.8(c)(1)(v) is similar in substance to
current Sec. 106.8(c), which requires a recipient to provide persons
entitled to a notification under Sec. 106.8(a) notice of the
recipient's grievance procedures including how to report or file a
complaint of sex discrimination, how to report or file a formal
complaint of sexual harassment, and how the recipient will respond, the
Department proposes changes consistent with the rest of its proposed
regulations. Specifically, proposed Sec. 106.8(c)(1)(v) would reflect
the removal of the formal complaint requirement and instead specify
that a recipient provide notice of its grievance procedures under
proposed Sec. Sec. 106.8(b)(2), 106.45, and if applicable 106.46, to
persons entitled to a notification under Sec. 106.8(c), and that
notice include how to report information about conduct that may
constitute sex discrimination under Title IX or make a complaint of sex
discrimination. The Department also proposes eliminating the
requirement that the notice state how the recipient will respond
because it is redundant. Persons entitled to notice would already be
informed of the recipient's grievance procedures under proposed
Sec. Sec. 106.8(b)(2), 106.45, and if applicable 106.46, which would
explain the recipient's process for responding to complaints.
Publication of notice of nondiscrimination. The Department proposes
clarifying in Sec. 106.8(c)(2) that a recipient must prominently
include all elements of its notice of nondiscrimination set out in
proposed Sec. 106.8(c)(1)(i) through (v) in its notice. The Department
proposes further clarifying that the types of documents used or
distributed by a recipient that are required to include the information
set out in proposed Sec. 106.8(c)(1) include each announcement,
bulletin, and application form that the recipient
[[Page 41428]]
makes available to persons entitled to notification under proposed
Sec. 106.8(c) or otherwise uses for recruiting students or employees.
As part of the 2020 amendments, the Department removed the previous
requirement to include Title IX Coordinator and policy information in
announcements, bulletins, and application forms that the recipient made
available to specific persons identified in the regulation or otherwise
used to recruit students or employees, and referred only to the
recipient's website, if any, and handbooks and catalogs. Upon further
consideration and reweighing the facts and circumstances, the
Department currently understands that it is important that recruitment
materials are included in the regulations to ensure that potential
applicants are aware that the recipient does not discriminate, how to
locate a recipient's nondiscrimination policy and the Title IX
Coordinator's contact information when deciding whether to apply to or
attend a recipient's education program or activity. The Department also
now believes that restoring the requirement to include this information
in each announcement, bulletin, and application form used generally or
in connection with recruitment would increase awareness regarding the
Title IX Coordinator and policy information by reaching additional
individuals at various points throughout the year. In addition,
providing this information in recruitment materials would assist any
potential applicants in understanding and locating the recipient's
nondiscrimination policy and grievance procedures and in providing a
point of contact within the recipient's organization if needed
regarding an experience of sex discrimination during the recipient's
recruitment process.
In light of the different types of materials a recipient may use in
connection with recruitment (such as pamphlets, flyers, or postcards),
and the fact that some of these are space-limited, the Department
proposes minimizing the burden on a recipient by allowing an option for
the recipient to comply with respect to these publications by providing
a website reference to where the notice of nondiscrimination is found
under proposed Sec. 106.8(c)(2)(ii). This option would not apply to
materials on websites and, in the vast majority of cases, would not
apply to printed publications such as handbooks or catalogs, since
those would have sufficient space to include at least one single and
complete reference to the notice of nondiscrimination in at least one
location on the website or in the handbook or catalog.
Section 106.8(d) Training
Current regulations: Section 106.45(b)(1)(iii) addresses a
recipient's responsibility to provide training in connection with its
obligation to respond to sexual harassment. Specifically, current Sec.
106.45(b)(1)(iii) requires a recipient to ensure that its Title IX
Coordinator, investigators, decisionmakers, and any person who
facilitates an informal resolution process receives training on the
definition of ``sexual harassment'' in current Sec. 106.30, the scope
of the recipient's education program or activity, how to conduct an
investigation and grievance process including hearings, appeals, and
informal resolution processes, as applicable, and how to serve
impartially, including by avoiding prejudgment of the facts at issue,
conflicts of interest, and bias. It also requires a recipient to ensure
that decisionmakers receive training on any technology to be used at a
live hearing and on issues of relevance of questions and evidence,
including when questions and evidence about the complainant's sexual
predisposition or prior sexual behavior are not relevant. Finally,
current Sec. 106.45(b)(1)(iii) requires a recipient to ensure that
investigators receive training on issues of relevance to create an
investigative report that fairly summarizes relevant evidence. Under
the current regulations, training materials must not rely on sex
stereotypes and must promote impartial investigations and adjudications
of formal complaints of sexual harassment.
Proposed regulations: The Department proposes Sec. 106.8(d) as a
new section to consolidate the recipient's training requirements under
Title IX. Specifically, the recipient must provide training as follows,
ensuring that training does not rely on sex stereotypes and that
individuals receive training related to their responsibilities.
Proposed Sec. 106.8(d)(1) would require that all employees be
trained on the recipient's obligation to address sex discrimination in
its education program or activity, the scope of conduct that
constitutes sex discrimination, including the proposed definition of
``sex-based harassment,'' and all applicable notification and
information requirements under proposed Sec. Sec. 106.40(b)(2) and
106.44.
Proposed Sec. 106.8(d)(2) would require investigators,
decisionmakers, and other persons who are responsible for implementing
the recipient's grievance procedures or have the authority to modify or
terminate supportive measures under proposed Sec. 106.44(g)(4) to be
trained, to the extent related to their responsibilities, on each of
the following:
The topics listed in proposed Sec. 106.8(d)(1);
The recipient's obligations under proposed Sec. 106.44;
The recipient's grievance procedures under proposed Sec.
106.45, and if applicable proposed Sec. 106.46;
How to serve impartially, including by avoiding
prejudgment of the facts at issue, conflicts of interest, and bias; and
The meaning and application of the term ``relevant,'' in
relation to questions and evidence, and the types of evidence that are
impermissible regardless of relevance under proposed Sec. 106.45, and
if applicable proposed Sec. 106.46.
Proposed Sec. 106.8(d)(3) would require facilitators of an
informal resolution process as described in proposed Sec. 106.44(k) to
be trained on the topics listed in proposed Sec. 106.8(d)(1), the
rules and practices associated with the recipient's informal resolution
process, and on how to serve impartially, including by avoiding
conflicts of interest and bias.
Proposed Sec. 106.8(d)(4) would require the Title IX Coordinator
and any designees to be trained on:
All of the topics listed in proposed Sec. 106.8(d)(1)
through (3);
Their specific responsibilities under Sec. Sec. 106.8(a),
106.40(b)(3), 106.44(f), and 106.44(g);
The recipient's recordkeeping system and the requirements
of Sec. 106.8(f); and
Any other training necessary to coordinate the recipient's
compliance with Title IX.
Reasons: The Department has reviewed the training requirements in
the current regulations and proposes that, to best fulfill Title IX's
nondiscrimination mandate, appropriate staff training related to Title
IX must cover more than the grievance procedures for sexual harassment.
Many of the requirements of current Sec. 106.45(b)(1)(iii) are
included in proposed Sec. 106.8(d), including the requirement that
trainings not rely on sex stereotypes. The Department proposes adding
Sec. 106.8(d) to make clear that employees must receive training on a
variety of aspects of Title IX that are relevant and critical to their
specific roles. The proposed provision combines all proposed staff
training requirements for easy accessibility and lists requirements
according to employees' particular responsibilities. This would help a
recipient ensure it is
[[Page 41429]]
appropriately training staff for each position.
Proposed Sec. 106.8(d)(1) would first specify training
requirements for all employees and would cover a recipient's
confidential employees, non-confidential employees, and student-
employees. This all-employee training requirement would serve an
important purpose of ensuring that those most likely to interact with
students in their day-to-day work (such as teachers, professors, and
student-facing staff) as well as with other employees have the training
necessary to understand their role in ensuring the recipient's
compliance with its Title IX obligations. This would include the scope
of conduct that constitutes sex discrimination, including the
definition of ``sex-based harassment,'' how to respond consistent with
proposed Sec. 106.40(b)(2) to information about a student's pregnancy
or related conditions, and how to respond consistent with proposed
Sec. 106.44 to information about conduct that may constitute sex
discrimination under Title IX.
Proposed Sec. 106.8(d)(2) would require investigators,
decisionmakers, and other persons who are responsible for implementing
the recipient's grievance procedures or have the authority to modify or
terminate supportive measures in proposed Sec. 106.44(g)(4) to be
trained on certain topics, to the extent related to their
responsibilities. The group covered by this training requirement would
be broader than current Sec. 106.45(b)(iii) in that it includes
persons who are not investigators, decisionmakers, or coordinators, but
are responsible for implementing the recipient's grievance procedures
or have the authority to modify or terminate supportive measures. This
proposed clarification is meant to ensure that all persons who are
involved in the investigation and resolution of a Title IX complaint
are properly trained. The Department proposes moving the training
requirements for facilitators of informal resolutions to a separate
section to better reflect the unique responsibilities of that role.
Proposed Sec. 106.8(d)(2) would require investigators,
decisionmakers, and other persons who are responsible for implementing
the recipient's grievance procedures or have the authority to modify or
terminate supportive measures under proposed Sec. 106.44(g)(4) to be
trained on many of the same topics as are required in current Sec.
106.45(b)(iii), including the definition of prohibited ``sex-based
harassment,'' the recipient's grievance procedures, how to serve
impartially, and how to assess the relevance of questions and evidence.
Proposed Sec. 106.8(d)(2) would also add additional topics, including
the core elements included in training for all employees under proposed
Sec. 106.8(d)(1) and the recipient's obligations under proposed Sec.
106.44. It would also apply the existing training requirement of Sec.
106.45(b)(iii) on issues of relevance more generally because relevancy
considerations are not limited to an investigative report and arise
throughout an investigation. The Department also proposes that this
training would include training on the types of questions and evidence
that that are impermissible regardless of relevance. The Department
believes these topics would be important for those persons who are
responsible for implementing the recipient's grievance procedures or
have the authority to modify or terminate supportive measures to
understand their responsibilities as part of the recipient's Title IX
compliance efforts.
The Department also proposes removing certain named topics from
current Sec. 106.45(b)(1)(iii). The Department has not proposed
training on ``the scope of the recipient's education program or
activity'' as an express, separate topic because this should be covered
by the obligation to provide training on the recipient's obligation to
address sex discrimination in its education program or activity in
proposed Sec. 106.8(d)(1). Similarly, the specific requirement in
current Sec. 106.45(b)(iii) to provide training on ``how to conduct an
investigation and grievance process including hearings, appeals, and
informal resolution processes'' would be covered by the proposed
requirement in proposed Sec. 106.8(d)(2) to provide training on ``the
recipient's obligations under Sec. 106.44'' and ``the recipient's
grievance procedures as described in Sec. 106.45, and if applicable
Sec. 106.46.''
The current regulations, at Sec. 106.45(b)(1)(iii), also require
training on any technology to be used at a live hearing. The proposed
regulations would permit the use of technology to conduct live hearings
with the parties in separate locations. Unlike the current regulations,
the Department proposes removing the requirement that the decisionmaker
personally receive technology training; however, a recipient would be
responsible for ensuring that technology used during any live hearing
enables the decisionmaker and parties to simultaneously see and hear
the party or witness while that person is speaking or communicating in
another format. Accordingly, the proposed regulations would require
that the technology operate effectively as required but not that the
decisionmaker serve as the operator of the technology.
Proposed Sec. 106.8(d)(3) would set special training requirements
for facilitators of an informal resolution process under proposed Sec.
106.44(k), including the core elements included in training for all
employees under proposed Sec. 106.8(d)(1), as well as training on the
rules and practices associated with the recipient's informal resolution
process and on how to serve impartially, including by avoiding
conflicts of interest and bias. Proposed Sec. 106.8(d) would not
require facilitators of informal resolution to be trained on the
recipient's grievance procedures or on prejudgment of the facts at
issue because a facilitator is not responsible for implementing the
recipient's grievance procedures and is not engaged in factfinding, so
training on those topics would not be appropriate for a facilitator of
an informal resolution process in the way it would be for a
decisionmaker or investigator.
Lastly, proposed Sec. 106.8(d)(4) would require the Title IX
Coordinator and any designees to be trained on all topics required
under proposed Sec. 106.8(d)(1) through (3), as well as their specific
responsibilities under proposed Sec. Sec. 106.8(a), 106.40(b)(3),
106.44(f), and 106.44(g), the recipient's recordkeeping system and the
requirements of proposed Sec. 106.8(f), and any other training
necessary to coordinate the recipient's compliance with Title IX.
Because of the central role of the Title IX Coordinator under the
current and proposed regulations, training of the Title IX Coordinator
is critical to a recipient's effective compliance with Title IX. The
Department proposes the broadest training requirement for the Title IX
Coordinator because the person in that role should understand all
aspects of the recipient's Title IX compliance program, including their
own roles and responsibilities and the roles and responsibilities of
all other employees.
Section 106.8(e) Students With Disabilities
Current regulations: None.
Proposed regulations: The Department proposes adding a new
paragraph that addresses the potential intersection of Federal
disability law with Title IX in the elementary school, secondary
school, and postsecondary institution contexts. Proposed Sec. 106.8(e)
would provide clarification regarding the alignment of Title IX
compliance with the requirements of the Individuals
[[Page 41430]]
with Disabilities Education Act (IDEA) and Section 504 of the
Rehabilitation Act of 1973 (Section 504) throughout the recipient's
implementation of grievance procedures as discussed in Sec. 106.45,
and if applicable Sec. 106.46. The Department proposes requiring that
if a complainant or respondent is an elementary or secondary student
with a disability, the Title IX Coordinator must consult with that
student's Individualized Education Program (IEP) team or group of
persons knowledgeable about the student under Section 504 (Section 504
team). Further, the Department proposes adding that for a postsecondary
student with a disability, the Title IX Coordinator may consult, as
appropriate, with the individual or office that the recipient has
designated to provide support to students with disabilities.
Reasons: Students with disabilities experience sex-based harassment
in significant numbers, with certain populations of students with
disabilities at higher risk, as the Department has recognized
previously, including in the preamble to the 2020 amendments. 85 FR
30079. For these students, supportive measures that address the
harassment's effects in relation to a student's disability may require
tailoring in ways that may not be obvious to a Title IX Coordinator. In
addition, in cases in which students with disabilities are respondents,
care must be taken that any supportive measures are adopted with
awareness of how they might impact the students' equal access to the
recipient's education program or activity. Similarly, the rights of
students with disabilities under the Federal laws cited in the proposed
provision may preclude or require tailoring of otherwise appropriate
supportive measures or emergency removals, or, for students found
responsible for sex-based harassment, disciplinary sanctions. To help
elementary school and secondary school recipients and their Title IX
Coordinators comply with the proposed regulations and not interfere
with rights of students with disabilities under other Federal laws, the
Department proposes that the regulations make clear the Title IX
Coordinator has the responsibility to consult with the IEP team and
Section 504 team who are already charged by Federal law with making
individualized decisions about students with disabilities.
In the elementary school and secondary school context, the IDEA and
Section 504 ensure protections for students with disabilities. There
are distinctions among the rights granted and procedures required by
each statute that are crucial in other contexts. For purposes of the
proposed regulations, however, it is only necessary to note that the
implementing regulations for the IDEA and Section 504 require that a
group of persons--the IEP team or Section 504 team--is responsible for
making individualized determinations about what constitutes a free
appropriate public education (FAPE) for each child with a disability.
34 CFR 300.17; 34 CFR 104.33. The team must address, among many other
things, questions regarding the placement, special education, and
related services that are appropriate for that student. 34 CFR 300.300
through 300.328; 34 CFR 104.34 through 104.36.
For an elementary or secondary student complainant or respondent
who is a student with a disability, the Title IX grievance procedures
may intersect with the decisions, including those about FAPE, made by
the IEP team or Section 504 team. A student with a disability involved
in a Title IX proceeding would best be served by the Title IX
Coordinator consulting the student's IEP team or Section 504 team
throughout the implementation of the grievance procedures described in
proposed Sec. 106.45, as well as in the offer and coordination of any
supportive measures as described in proposed Sec. 106.44(g)(7). For
this reason, the Department proposes making this consultation with the
IEP team or Section 504 team a requirement for an elementary or
secondary student complainant or respondent who is a student with a
disability. This consultation should be carried out with an
understanding of the sensitivity of the issues involved and a priority
on preserving the confidentiality of the student and other parties
involved to the extent possible.
Federal law does not grant students with disabilities in higher
education any similar right to a team of knowledgeable persons coming
together to make individualized FAPE decisions. Under Section 504, a
postsecondary student with a disability does not have to disclose that
they have a disability. Generally, if a student with a disability would
like an academic adjustment or other modification related to their
disability, they must provide information related to their disability
to the postsecondary institution, and the institution must then
consider their request. Because of those differences, including that a
student with a disability may not have established a voluntary
relationship with the postsecondary institution's office that serves
students with disabilities, the Department proposes that the
consultation between a Title IX Coordinator and the postsecondary
institution's disability services office should be permitted but not
required.
Section 106.8(f) Recordkeeping
Current regulations: Section 106.45(b)(10)(i) requires a recipient
to maintain the following records for a period of seven years: each
sexual harassment investigation including any determination regarding
responsibility and any audio or audiovisual recording or transcript
required under paragraph (b)(6)(i) of this section; any disciplinary
sanctions imposed on the respondent; any remedies provided to the
complainant designed to restore or preserve equal access to the
recipient's education program or activity; any appeals and the result
therefrom, any informal resolution and the result therefrom; and all
materials used to train Title IX Coordinators, investigators,
decisionmakers, and any person who facilitates an informal resolution
process. A recipient must make these training materials publicly
available on its website, or if the recipient does not maintain a
website, the recipient must make these materials available upon request
for inspection by members of the public.
For each response required under Sec. 106.44, current Sec.
106.45(b)(10)(ii) requires a recipient to create and maintain for a
period of seven years: records of any actions, including supportive
measures, taken in response to a report or formal complaint of sexual
harassment. It further requires a recipient to document the basis for
its conclusion that its response was not deliberately indifferent, and
document that it has taken measures designed to restore or preserve
equal access to the recipient's education program or activity. If a
recipient does not provide a complainant with supportive measures,
current Sec. 106.45(b)(10)(ii) requires the recipient to document the
reasons why such a response was not clearly unreasonable in light of
the known circumstances. The documentation of certain bases or measures
does not limit the recipient in the future from providing additional
explanations or detailing additional measures taken.
Proposed regulations: The Department proposes moving the
recordkeeping requirements to Sec. 106.8(f), broadening them to cover
records related to a recipient's actions in response to all forms of
sex discrimination, not only sexual harassment, and maintaining the
seven-year retention period for records and the general types of
records described in the
[[Page 41431]]
current regulations. The Department proposes revising the description
of the records a recipient is required to maintain to align with the
other proposed changes to the regulations. The Department also proposes
removing current Sec. 106.45(b)(10)(ii) requiring a recipient to
maintain records documenting that its response was not deliberately
indifferent and that its decision not to provide a complainant with
supportive measures was not clearly unreasonable in light of the known
circumstances because these types of records would no longer be
applicable under the proposed regulations at Sec. 106.44, which would
no longer refer to a deliberate indifference standard.
Consistent with the Department's proposed clarification of a
recipient's duty to prevent discrimination and ensure equal access for
students and employees in connection with pregnancy or related
conditions, the Department proposes revising the recordkeeping
requirement to include records documenting the actions the recipient
took to meet its obligations under proposed Sec. Sec. 106.40 and
106.57.
In addition, the Department proposes retaining the requirement that
a recipient must retain records of certain training materials but
broadening the scope of the training materials to cover all forms of
sex discrimination, including but not limited to sexual harassment,
consistent with proposed Sec. 106.8(d).
The Department also proposes retaining the requirement that a
recipient make these training materials publicly available on its
website, or if the recipient does not maintain a website, the recipient
must make these materials available upon request for inspection by
members of the public. The Department proposes broadening the scope of
the training materials that must be posted on the recipient's website
or made available upon request to cover all forms of sex
discrimination, not just sexual harassment, consistent with proposed
Sec. 106.8(d).
Proposed Sec. 106.8(f)(1) would require each recipient to
maintain, for a period of seven years:
For each complaint of sex discrimination, records
documenting the informal resolution process under proposed Sec.
106.44(k) or the grievance procedures under proposed Sec. 106.45, and
if applicable proposed Sec. 106.46, and the resulting outcome;
For each incident of conduct that may constitute sex
discrimination under Title IX of which the Title IX Coordinator was
notified, records documenting the actions the recipient took to meet
its obligations under proposed Sec. 106.44;
All materials used to provide training under proposed
Sec. 106.8(d). A recipient would be required to make these training
materials publicly available on its website, or if the recipient does
not maintain a website the recipient would be required to make these
materials available upon request for inspection by members of the
public; and
All records documenting the actions the recipient took to
meet its obligations under proposed Sec. Sec. 106.40 and 106.57.
Reasons: After reevaluating the issues covered by the current
recordkeeping requirements, the Department proposes revising the
requirements to ensure that they address the full scope of a
recipient's obligation to respond to complaints of sex discrimination
under Title IX. The Department's current regulations do not address the
types of records, if any, a recipient is required to maintain regarding
complaints of sex discrimination other than sexual harassment.
The Department proposes maintaining the requirement in the current
regulations related to the general types of records that must be kept
and maintaining the seven-year record retention period, while
eliminating the specificity in the types of records each recipient is
required to maintain. This proposed change corresponds with proposed
changes elsewhere in the proposed regulations regarding a recipient's
obligations to respond to complaints of sex discrimination under Title
IX. For example, when a recipient uses its grievance procedures under
proposed Sec. 106.45, and if applicable proposed Sec. 106.46, to meet
its obligations under proposed Sec. 106.44, the recipient would be
required to maintain records of that process, which would include some
of the same records currently required under Sec. 106.45(b)(10)(i)(A).
In addition, consistent with current Sec. 106.45(b)(10)(i)(C),
proposed Sec. 106.8(f)(1) would require a recipient to maintain
records of its informal resolution process under proposed Sec.
106.44(k), if it uses that process to meet its obligations under
proposed Sec. 106.44. The Department's statement in the preamble to
the 2020 amendments ``that while the final regulations require records
to be kept for seven years, nothing in the final regulations prevents
recipients from keeping their records for a longer period of time if
the recipient wishes or due to other legal obligations'' would also
continue to apply under the proposed regulations. 85 FR 30411.
The Department also proposes removing the records described in
current Sec. 106.45(b)(10)(ii) that relate to a recipient's
demonstrating its compliance with the deliberate indifference standard
from the recordkeeping requirement because those requirements would no
longer be relevant under the proposed regulations which, as explained
in the discussion of proposed Sec. 106.44, would remove the deliberate
indifference standard. The recordkeeping requirement related to
supportive measures in Sec. 106.45(b)(10)(ii) of the current
regulations, although still applicable under the proposed regulations,
is covered by records discussed in proposed Sec. 106.8(f)(2), which
would require a recipient to maintain records of the actions the
recipient took to meet its obligations under Sec. 106.44. As explained
in the discussion of proposed Sec. 106.44(g), these actions would
include offering supportive measures, as appropriate, to the
complainant and respondent.
For the same reasons discussed above regarding the modification of
the recordkeeping requirement to cover all sex discrimination,
including but not limited to sexual harassment, consistent with Title
IX, the Department proposes revising the requirement in current Sec.
106.45(b)(10)(i)(D) to require a recipient to maintain all training
materials used to provide training on sex discrimination, including
sexual harassment, under Sec. 106.8(d). Under proposed Sec.
106.8(f)(3), a recipient would also be required to publicly post these
materials on its website consistent with current Sec.
106.45(b)(10)(i)(D), or if the recipient does not maintain a website,
to make these materials available upon request for inspection to
members of the public.
Finally, under proposed Sec. 106.8(f)(4), the Department proposes
requiring a recipient to maintain all records documenting the actions
the recipient took to meet its obligations under proposed Sec. Sec.
106.40 and 106.57 regarding students and employees who are pregnant or
experiencing pregnancy-related conditions. This would ensure that OCR
is able to assess a recipient's compliance with those obligations,
including but not limited to, the implementation of reasonable
modifications and provision of lactation space for students because of
pregnancy or related conditions under proposed Sec. 106.40(b)(3) and
(4), and the provision of lactation time and space for employees under
proposed Sec. 106.57(e).
[[Page 41432]]
E. Action by a Recipient To Operate Its Education Program or Activity
Free From Sex Discrimination
Section 106.44(a) General
Current regulations: Section 106.30(a) defines ``actual knowledge''
as notice of sexual harassment or allegations of sexual harassment to a
recipient's Title IX Coordinator or any official of the recipient who
has authority to institute corrective measures on behalf of the
recipient, or to any employee of an elementary and secondary school
recipient. Imputation of knowledge based solely on vicarious liability
or constructive notice is insufficient to constitute actual knowledge.
This standard is not met when the only official of the recipient with
actual knowledge is the respondent. The mere ability or obligation to
report sexual harassment or to inform a student about how to report
sexual harassment, or having been trained to do so, does not qualify an
individual as one who has authority to institute corrective measures on
behalf of the recipient. Notice as used in this paragraph includes but
is not limited to, a report of sexual harassment to the Title IX
Coordinator as described in Sec. 106.8(a). The regulations require a
recipient to respond to sexual harassment or allegations of sexual
harassment only if it has actual knowledge.
Current Sec. 106.44(a) states that a recipient with actual
knowledge of sexual harassment in its education program or activity
against a person in the United States must respond promptly in a manner
that is not deliberately indifferent. That provision further states a
recipient is deliberately indifferent only if its response to sexual
harassment is clearly unreasonable in light of known circumstances.
Proposed regulations: Proposed Sec. 106.44(a) states that a
recipient must take prompt and effective action to end any sex
discrimination that has occurred in its education program or activity,
prevent its recurrence, and remedy its effects, and it clarifies that
to ensure it can satisfy this obligation, the recipient must comply
with proposed Sec. 106.44.
Reasons: A recipient's duty to operate its education program or
activity free from sex discrimination. Title IX prohibits all forms of
sex discrimination in a recipient's education program or activity. In
the 2020 amendments, the Department added a requirement at 34 CFR
106.44(a) that ``[a] recipient with actual knowledge of sexual
harassment in an education program or activity of the recipient against
a person in the United States, must respond promptly in a manner that
is not deliberately indifferent.'' In doing so, the Department extended
and adapted the Gebser/Davis framework from private litigation for
monetary damages to the context of administrative enforcement of Title
IX. See, e.g., 85 FR 30038, 30088 (noting that the 2020 amendments
``apply an adapted condition of actual knowledge'' and a deliberate
indifference standard that was ``adapted from the Gebser/Davis
framework''). In discussing the actual knowledge standard in the
preamble to the 2020 amendments, the Department stated that ``[b]ecause
Title IX is a statute `designed primarily to prevent recipients of
Federal financial assistance from using the funds in a discriminatory
manner,' it is a recipient's own misconduct--not the sexually harassing
behavior of employees, students, or other third parties--that subjects
the recipient to liability in a private lawsuit under Title IX, and the
recipient cannot commit its own misconduct unless the recipient first
knows of the sexual harassment that needs to be addressed.'' Id. at
30038 (quoting Gebser, 524 U.S. at 292) (footnotes and emphasis
omitted). The Department added that ``[t]he Supreme Court thus rejected
theories of vicarious liability (e.g., respondeat superior) and
constructive notice as the basis for a recipient's Title IX liability
in private Title IX lawsuits.'' Id. (citing Gebser, 524 U.S. at 289;
Davis, 526 U.S. at 650).
With respect to deliberate indifference as the appropriate standard
of liability for administrative enforcement, the Department stated in
the preamble to the 2020 amendments that the ``adaptions of the three-
part Gebser/Davis framework achieve important policy objectives that
arise in the context of a school's response to reports, allegations, or
incidents of sexual harassment in a school's education program or
activity, including respect for freedom of speech and academic freedom,
respect for complainants' autonomy, protection of complainants' equal
educational access while respecting the decisions of State and local
educators to determine appropriate supportive measures, remedies, and
disciplinary sanctions, consistency with constitutional due process and
fundamental fairness, and clear legal obligations that enable robust
administrative enforcement of Title IX violations.'' Id. at 30035.
The Department remains committed to these objectives: respect for
freedom of speech and academic freedom; respect for complainants'
autonomy; protection of complainants' equal educational access while
respecting the decisions of recipients to determine appropriate
supportive measures, remedies, and disciplinary sanctions; consistency
with constitutional due process and fundamental fairness; and clear
legal obligations that enable robust administrative enforcement of
Title IX violations. Further, the Department's tentative view is that
the proposed revisions to Sec. 106.44 would effectively achieve these
objectives while better ensuring that all recipients fulfill the Title
IX mandate to provide a nondiscriminatory educational environment. As
explained in greater detail in the discussion of the proposed
definition of ``sex-based harassment'' (Sec. 106.2), the Department
also holds the tentative position that the administrative enforcement
standard set out in the proposed regulations would adequately and fully
address the particular concerns regarding free speech and academic
freedom that the Department discussed in the 2020 amendments in
connection with its standard for enforcing Title IX.
The Department recognized in the preamble to the 2020 amendments
that there are important differences between judicial and
administrative enforcement for purposes of effectuating Title IX's
nondiscrimination mandate and noted that ``some violations of Title IX
may lend themselves to the administrative remedy of terminating Federal
financial assistance, while other violations may lend themselves to a
judicial remedy in private litigation.'' Id. at 30032 (citing Cannon,
441 U.S. at 704-06). More specifically, OCR's focus in the
administrative enforcement context is on a recipient's responsibility
under the nondiscrimination requirements of the Title IX statute and
regulations to take prompt and effective action to prevent, eliminate,
and remedy sex discrimination occurring in its programs or activities,
while a court's focus is on a school's liability to compensate a person
who suffered harm as a result of the school's action or inaction.
OCR received feedback from stakeholders during the June 2021 Title
IX Public Hearing and in listening sessions both in support of and in
opposition to the references to actual knowledge and the deliberate
indifference standard in the 2020 amendments. For example, OCR heard
from stakeholders who supported the ``actual knowledge'' definition or
who wanted the definition of ``notice'' to be narrowed even further. On
the other hand, OCR also received feedback from stakeholders expressing
concern about the narrowness of the actual knowledge standard. These
stakeholders urged the Department to return to the constructive
knowledge standard set out in OCR's
[[Page 41433]]
prior guidance. Stakeholders also expressed concern that the actual
knowledge standard enables a recipient to ignore sexual harassment
simply because allegations of harassing conduct were not reported to
the right employee.
OCR also heard from stakeholders since the 2020 amendments went
into effect asking the Department to reconsider the application of the
standard of liability for private actions for monetary damages to a
recipient's obligation to respond to sexual harassment in the
administrative enforcement context. A variety of stakeholders
representing all educational levels, including elementary school and
secondary school administrators, representatives from postsecondary
institutions, Title IX Coordinators, State Attorneys General, and
advocacy organizations, expressed concern that the deliberate
indifference standard is inappropriate in the administrative
enforcement context. Stakeholders stated that the deliberate
indifference standard erodes efforts to promote and nurture
institutional trust by appearing to hold schools to a lower standard
and could be construed to deprive OCR of critical enforcement
authority, including the ability to address sex discrimination before
it rises to the level of the recipient being held liable for money
damages in private lawsuits. In addition, other stakeholders explained
that it is difficult for recipients to implement the deliberate
indifference standard for sexual harassment in cases that also raise
discrimination on other bases, such as race and disability, in which
the Department has retained its longstanding standard that looks to the
reasonableness of a recipient's response as the appropriate standard
for administrative enforcement. They argued that by maintaining uniform
standards across civil rights statutes, the Department would reduce
confusion and strengthen enforcement in addressing such intersectional
claims. In addition to the difficulty associated with requiring
recipients to navigate different policies, stakeholders noted that the
Department's application of a different standard of liability for
sexual harassment than for other forms of discrimination raises
questions regarding equity, specifically as to why the Department
requires recipients to meet a less stringent standard for responding to
complaints about sexual harassment than for complaints of other types
of prohibited harassment and discrimination, including sex
discrimination.
The Department acknowledged in the preamble to the 2020 amendments
that ``[n]either Gebser nor Davis indicated whether the Department's
administrative enforcement of Title IX should continue to turn on
vicarious liability and constructive notice.'' Id. at 30038. The
preamble to the 2020 amendments further acknowledged that Gebser and
Davis did not require the Department to adopt deliberate indifference
as the standard of liability in the administrative enforcement context.
Id. at 30043. As explained in greater detail in the discussion of OCR's
Guidance and Supreme Court Precedent on Title IX's Application to
Sexual Harassment (Section II.B.1), the Supreme Court explicitly
acknowledged the authority of Federal agencies, such as the Department,
to ``promulgate and enforce requirements that effectuate [Title IX's]
nondiscrimination mandate,'' even in circumstances that would not give
rise to a claim for money damages. Gebser, 524 U.S. at 292. The
Department thus explained in the preamble to the 2020 amendments that
it ``adopt[ed] the actual knowledge condition from the Gebser/Davis
framework,'' even though the Department was not required to do so, and
acknowledged that it had adapted that standard, stating that it was
``tak[ing] into account the different needs and expectations of
students in elementary and secondary schools, and in postsecondary
institutions, with respect to sexual harassment and sexual harassment
allegations.'' 85 FR 30038. The Department further explained that it
chose to invoke deliberate indifference as an apparent threshold for
the Department's administrative enforcement of Title IX with certain
modifications, even though it was not required to do so under either
Gebser or Davis, because it viewed this standard as ``the best policy
approach to further Title IX's non-discrimination mandate.'' Id. at
30043.
The Department's longstanding position is that it cannot compel a
recipient to comply with Title IX--for example by terminating Federal
funds from the recipient--simply because an official identified in the
``actual knowledge'' definition of the current regulations (e.g., an
elementary school teacher or bus driver) knew of sexual harassment and
failed to tell the recipient's Title IX administrators about it, with
the result that the school failed to promptly and effectively respond.
This is consistent with OCR's practice when it seeks to
administratively enforce the Department's Title IX regulations through
an investigation or compliance review. OCR begins by providing notice
to the recipient of the allegations of potential Title IX violations it
is investigating; if OCR finds a violation, OCR is required to seek
voluntary corrective action from the recipient before pursuing fund
termination or other enforcement mechanisms. 20 U.S.C. 1682; 34 CFR
100.7(d) (incorporated through 34 CFR 106.81); see also Gebser, 524
U.S. at 287-89; 2001 Revised Sexual Harassment Guidance at iii-iv. In
the administrative enforcement process, OCR provides notice of the
alleged sex discrimination to the recipient, as well as an opportunity
for the recipient to take appropriate corrective action at multiple
stages during the process.
Notwithstanding that a recipient cannot be liable for monetary
damages, or be subject to administrative enforcement, unless and until
officials with authority to take corrective action are made aware of
the problem and fail to adequately respond, because Title IX provides
that ``[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving Federal financial assistance,'' 20 U.S.C. 1681(a), a
recipient has a legal duty to operate its education program or activity
free from sex discrimination at all times. This legal duty to operate
its education program or activity in a manner in which people are not
subjected to sex discrimination exists regardless of who has notice of
any discriminatory conduct. It also covers all forms of sex
discrimination and is not limited just to sexual harassment. Thus,
proposed Sec. 106.44(a) would require a recipient to take prompt and
effective action to end any sex discrimination in its education program
or activity, prevent its recurrence, and remedy its effects, consistent
with the statutory text. This requirement would include situations in
which a recipient determines that a respondent's conduct violated its
prohibition on sex discrimination, which would amount to a
determination that sex discrimination had occurred, as explained in the
discussion of the proposed definition of ``respondent'' (Sec. 106.2).
This requirement would also include situations in which a recipient
reviews its own actions in response to a complaint and determines that
it discriminated based on sex in its policy or practice. For example,
proposed Sec. 106.44(a) would require a recipient to provide remedies
as appropriate to a student who experienced discrimination as a result
of another student violating its prohibition on sex discrimination and
prevent the recurrence of that
[[Page 41434]]
discrimination. Likewise, if a recipient determines that it did not
provide a required modification to a pregnant student or discriminated
based on sex in the provision of athletic opportunities, it would be
required under proposed Sec. 106.44(a) to provide remedies for its own
discrimination based on sex and take additional action as needed to
prevent recurrence.
Current Sec. 106.44(a) states that ``[a] recipient with actual
knowledge of sexual harassment in an education program or activity of
the recipient against a person in the United States, must respond
promptly in a manner that is not deliberately indifferent'' and
provides that the recipient's ``Title IX Coordinator must promptly
contact the complainant to discuss the availability of supportive
measures'' and ``explain to the complainant the process for filing a
formal complaint.'' If the recipient receives a formal complaint under
those procedures, current Sec. 106.44(b) then obligates the recipient
to follow additional requirements discussed elsewhere in the current
regulations. Prior to the 2020 amendments, OCR had interpreted Title IX
to require a recipient with notice of sexual harassment to ``promptly
investigate to determine what occurred and then take appropriate steps
to resolve the situation.'' 2001 Revised Sexual Harassment Guidance at
15; see also 1997 Sexual Harassment Guidance, 62 FR 12042. This
obligation existed regardless of whether the harassed student filed a
complaint or asked the school to take action on the student's behalf.
2001 Revised Sexual Harassment Guidance at 15.
In the preamble to the 2020 amendments, the Department explained
its view that requiring a recipient to take `` `effective corrective
actions to stop the harassment [and] prevent its recurrence,' . . .
ostensibly holds a recipient strictly liable to `stop' and `prevent'
sexual harassment.'' 85 FR 30044 n.165 (quoting 2001 Revised Sexual
Harassment Guidance at 10, 12); see also id. at 30046 (explaining that
``these final regulations do not unrealistically hold recipients
responsible where the recipient took all steps required under these
final regulations, took other actions that were not clearly
unreasonable in light of the known circumstances, and a perpetrator of
harassment reoffends''). In light of these concerns, the Department
adopted the deliberate indifference standard, stating that this
standard would afford recipients greater discretion in responding to
sexual harassment. Id. at 30044 n.165. In doing so, the Department
specified that the only steps, outside of the grievance process, that a
recipient was obligated to take were those listed in current Sec.
106.44(a)--i.e., the Title IX Coordinator must promptly contact the
complainant, discuss supportive measures, and explain the process for
filing a complaint. None of these steps requires the recipient to
ensure continued equal access to its education program or activity for
the parties and more broadly for a recipient's educational community or
otherwise ensures that a recipient meets its legal duty under Title IX
to operate its education program or activity free from sex
discrimination.
OCR heard, through the June 2021 Title IX Public Hearing and in
listening sessions, concerns about the Department's suggestion that a
school's obligation to respond to sexual harassment occurs only in
situations in which a recipient has actual knowledge of sexual
harassment. OCR also heard concerns about the way in which the current
regulations limit a recipient's required response to actual knowledge--
that a recipient is required only to offer a complainant supportive
measures and provide the complainant with information about the
recipient's grievance procedures, unless a formal complaint is filed
through the recipient's grievance procedures. Stakeholders expressed a
concern that in shifting from a reasonableness standard to deliberate
indifference, the Department no longer required schools to act
proactively to address sex discrimination in their educational
environment. They noted that under the 2020 amendments, the Department
failed to require recipients to fully address the impact of sexual
harassment in their educational environments, and further failed to
impose any obligations to respond to possible sex discrimination other
than requiring them to adopt grievance procedures for the prompt and
equitable resolution of sex discrimination complaints contained in
current Sec. 106.8(c). Together, these concerns suggested that the
approach adopted in the 2020 amendments may have created a troubling
gap in implementing Title IX's prohibition on sex discrimination: a
recipient may have information about possible sex discrimination in its
education program or activity and yet may have no obligation to take
any action to address it if a formal complaint is not filed and the
recipient's Title IX Coordinator determines that the allegations do not
warrant overriding a complainant's wishes and initiating a complaint.
These stakeholders further commented that there are other steps a
recipient can and should take to address sex discrimination outside of
acting through its grievance procedures and asked the Department to
reconsider its approach.
To address these concerns, dispel confusion created by the 2020
amendments, and ensure a recipient fulfills its legal duty to operate
its education program or activity free from sex discrimination,
proposed Sec. 106.44(a) would require a recipient to take prompt and
effective action to end any sex discrimination that has occurred in its
education program or activity, prevent its recurrence, and remedy its
effects. Although the Department does not propose a specific timeframe
for ``prompt'' action to end sex discrimination, as the Department
explained in the preamble to the 2020 amendments, what would constitute
reasonably prompt timeframes in a recipient's grievance process under
current Sec. 106.45 ``is judged in the context of the recipient's
obligation to provide students and employees with education programs
and activities free from sex discrimination.'' 85 FR 30269. Outside the
context of a recipient's grievance procedures for complaints of sex
discrimination, the Department reaffirms that ``prompt'' action to end
sex discrimination in a recipient's education program or activity ``is
necessary to further Title IX's nondiscrimination mandate.'' Id. An
unreasonable delay by a recipient to end sex discrimination would not
meet Title IX's obligation.
The Department notes that proposed Sec. 106.44(a)'s requirement of
prompt and effective action would not compel any particular officials
of a recipient to know of and respond effectively to sex discrimination
that has not yet occurred; however, it would impose an obligation on a
recipient to act effectively by taking reasonable steps calibrated to
ensure that its Title IX Coordinator learns of possible discrimination
so that the recipient can promptly and effectively address the
discrimination based on all available information. And when a
recipient's response does not end discrimination and prevent its
recurrence, the prompt and effective response requirement would mean
that the recipient must reevaluate its response and take additional
steps to end sex discrimination in its education program or activity.
This approach is consistent with Federal courts' interpretation of
Gebser and Davis and what is required of a recipient under the
deliberate indifference standard for monetary damages, when a
recipient's response to
[[Page 41435]]
discrimination must be designed to effectively end the discrimination
and prevent its recurrence and when courts have required a recipient to
reevaluate its response if it proves ineffective. See, e.g., Patterson
v. Hudson Area Sch., 551 F.3d 438, 449 (6th Cir. 2009) (``Given that
[the recipient] knew that its methods were ineffective, but did not
change those methods, `a reasonable jury certainly could conclude that
at some point during the . . . period of harassment[,] the school
district's standard and ineffective response to the known harassment
became clearly unreasonable.' ''), abrogated on other grounds, Foster
v. Bd. of Regents of Univ. of Mich., 982 F.3d 960 (6th Cir. 2020); see
also, e.g., Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 669-71
n.12 (2d Cir. 2012) (applying Davis in Title VI claim); Doe v. Sch. Bd.
of Broward Cnty., 604 F.3d 1248, 1261 (11th Cir. 2010) (`` `[W]here a
school district has knowledge that its remedial action is inadequate
and ineffective, it is required to take reasonable action in light of
those circumstances to eliminate the behavior.' '' (quoting Vance v.
Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260-61 (6th Cir. 2000))).
In the administrative enforcement context, the Department proposes
that a recipient meets its obligation to take prompt and effective
action to end any sex discrimination in its education program or
activity, prevent its recurrence, and remedy its effects by complying
with the steps required under the additional provisions in proposed
Sec. 106.44, as appropriate. Importantly, nothing in the proposed
regulations would affect the fact that the Department may not
``terminat[e] or refus[e] to grant or to continue [Federal financial]
assistance under [a] program or activity to any recipient'' until the
Department has made an express finding on the record of a failure to
comply with a regulatory or statutory requirement, ``after opportunity
for hearing.'' 20 U.S.C. 1682.
Section 106.44(b) Monitoring
Current regulations: None.
Proposed regulations: The Department proposes adding a requirement
at Sec. 106.44(b) that a recipient must require its Title IX
Coordinator to monitor barriers in the recipient's education program or
activity to reporting information about conduct that may constitute sex
discrimination under Title IX, and then the recipient must take steps
reasonably calculated to address barriers that have been identified.
Reasons: As explained in the discussion of Sex Discrimination
Generally (Section II.A), Title IX requires a recipient to operate its
education program or activity in a manner that is free from sex
discrimination. It is the Department's current view that a recipient
must identify and address barriers to reporting information that may
constitute sex discrimination under Title IX in order to fulfill this
obligation.
The Department has long emphasized the importance of a recipient's
efforts to prevent sex discrimination. For example, in the preamble to
its 2020 amendments to the Title IX regulations, the Department
repeatedly acknowledged the importance of efforts to prevent sex
discrimination. 85 FR 30063 (stating that ``the Department agrees with
commenters that educators, experts, students, and employees should also
endeavor to prevent sexual harassment from occurring in the first
place'' (emphasis omitted)); id. at 30070 (``The Department understands
. . . that prevention of sexual harassment incidents before they occur
is a worthy and desirable goal.''); id. at 30126 (``The Department
shares commenters' beliefs that measures preventing sexual harassment
from occurring in the first place are beneficial and desirable.''). The
Department also added requirements related to training for certain
employees in the 2020 amendments to the Title IX regulations, 34 CFR
106.45(b)(1)(iii), that serve a prevention function and thus are
crucial to the fulfillment of Title IX. For example, current Sec.
106.45(b)(1)(iii) requires ``Title IX Coordinators, investigators,
decision-makers, and any person who facilitates an informal resolution
process, receive training on the definition of sexual harassment in
Sec. 106.30'' and ``the scope of the recipient's education program or
activity.''
In addition, a longstanding concern of the Department has been that
information about conduct that may constitute sex discrimination under
Title IX may be underreported to officials of recipients who are able
to take effective steps to address it. For example, in the preamble to
the 2020 amendments, the Department noted concerns raised by
stakeholders that ``sexual assault is chronically underreported'' and
that while most of those who experience sexual assault tell someone
about their experience, only a small minority of incidents of sexual
assault are reported to officials such as the Title IX Coordinator. 85
FR 30110. In response to these concerns, the Department emphasized that
the Title IX Coordinator's role is to ensure that ``all students have
clear, accessible options for making reports.'' Id. at 30111. Under the
2020 amendments, a recipient is required to provide and disseminate the
contact information for its Title IX Coordinator to those seeking to
report sexual harassment, as well as to institute anti-bias training
for the Title IX Coordinator. Id. at 30111-12. The current regulations
do not, however, require a recipient to take specific steps to ensure
that information about conduct that may constitute sex discrimination
under Title IX is not underreported.
Following the implementation of the 2020 amendments, OCR continued
to hear from stakeholders who expressed concerns regarding barriers to
reporting information about conduct that may constitute sex
discrimination under Title IX. During the June 2021 Title IX Public
Hearing, OCR received feedback from some stakeholders noting that a
majority of students (one stakeholder stated that it was 90 percent of
students) who had experienced sex-based harassment did not report it to
their school. Stakeholders pointed to a variety of reasons for this
substantial underreporting, including inadequacies in a recipient's
response to reports, such as a failure to communicate promptly, to
investigate as required, to address violations of restrictions on
contact, or to respond effectively to retaliation. In addition, some
stakeholders stated that students were deterred from reporting sex-
based harassment because they feared being disciplined for violating
the recipient's code of conduct related to personal alcohol or drug use
or consensual sexual activity. On this issue, some stakeholders noted
that they or others had been disciplined after reporting sex-based
harassment, including for the very conduct about which they complained.
Cf. Complaint at ]] 8, 16, L.C. v. Williamsburg Cnty. Sch. Dist., 2018-
CP-45-00359 (S.C. Ct. Com. Pl. Aug. 14, 2018) (alleging that the
plaintiff, a female middle school student, was disciplined for
unauthorized access to the boys' bathroom following her report to the
school that three male students forced her to enter the boys' bathroom
to sexually assault her). Stakeholders noted that discipline for these
collateral conduct violations in response to reports of sex-based
harassment deters further reporting. Although stakeholders generally
expressed that supportive measures encouraged reporting, some also
explained that the lack of particular supportive measures, such as
academic adjustments in the aftermath of sex-based harassment or
trauma-informed counseling to provide confidential
[[Page 41436]]
support, disincentivized reporting. Finally, stakeholders shared
concerns about the role of the Title IX Coordinator, particularly in
elementary schools and secondary schools, including that students and
employees may not know who the Title IX Coordinator is or what the
Title IX Coordinator's responsibilities are, and that the Title IX
Coordinator may not have sufficient experience or training to respond
effectively to reports of sex discrimination.
Recognizing that these barriers may interfere with a recipient's
ability to offer its programs and activities free from sex
discrimination, as required by Title IX, the Department proposes that
the recipient's Title IX Coordinator would have responsibility to
monitor for barriers to reporting. The Department also proposes
requiring that when the Title IX Coordinator has identified such a
barrier, the recipient must take steps reasonably calculated to address
the barrier, consistent with Title IX and the Department's regulations.
Proposed Sec. 106.44(b) would thus complement the recipient's efforts
under proposed Sec. 106.44(a) to ensure that its education program or
activity is free from sex discrimination. By requiring its Title IX
Coordinator to monitor for barriers to reporting and then take steps
reasonably calculated to address those barriers, the recipient would
ensure that it is monitoring conditions in its educational environment
that might have the effect of chilling reporting of sex discrimination.
By addressing barriers to reporting, proposed Sec. 106.44(b) would
also support a recipient in complying with its obligations under Title
IX, including to prohibit retaliation under proposed Sec. 106.71. The
Department notes that under this proposed requirement, a recipient may
use various strategies to identify barriers, such as conducting regular
campus climate surveys, seeking targeted feedback from students and
employees who have reported or made complaints about sex
discrimination, participating in public awareness events for purposes
of receiving feedback from student and employee attendees, or regularly
publicizing and monitoring an email address designated for receiving
anonymous feedback about barriers to reporting sex discrimination. The
Department acknowledges that recipients vary in size and resources, and
emphasizes that recipients have the opportunity to choose strategies
that will be effective in their educational setting. The Department
also notes that in order to fulfill its monitoring obligation, a
recipient may need to direct its Title IX Coordinator to use multiple
strategies to ensure that the recipient is identifying barriers for all
populations, particularly those who may face additional barriers to
reporting, including students with disabilities or persons with limited
English proficiency. See 85 FR 30109.
Under proposed Sec. 106.44(b), the recipient must take steps
reasonably calculated to address actual or perceived barriers, if any,
consistent with Title IX and the Department's regulations. These steps
must be tailored to respond to the identified impediments and obstacles
to reporting, and could include, for example, more frequent and
prominent publication of the Title IX Coordinator's contact
information; relocation of the Title IX Coordinator's office to a more
visible, accessible location; ensuring that the Title IX Coordinator's
office is adequately staffed; enhancing training for employees with
Title IX responsibilities; the development and circulation of user-
friendly Title IX materials; publicized assurances that the recipient
will not discipline parties or witnesses to a grievance procedure for
certain code of conduct violations (e.g., prohibitions on personal
alcohol or drug use, consensual sexual relations, or unauthorized
access to facilities) that may be disclosed or uncovered during the
Title IX process; a wider variety of supportive measures; and targeted
trainings on how to assert Title IX rights for students and employees.
Section 106.44(c) Notification Requirements
Current regulations: Section 106.30(a) defines ``actual knowledge''
as notice of sexual harassment or allegations of sexual harassment to a
recipient's Title IX Coordinator or any official of the recipient who
has authority to institute corrective measures on behalf of the
recipient, or to any employee of an elementary and secondary school
recipient. Imputation of knowledge based solely on vicarious liability
or constructive notice is insufficient to constitute actual knowledge.
This standard is not met when the only official of the recipient with
actual knowledge is the respondent. The mere ability or obligation to
report sexual harassment or to inform a student about how to report
sexual harassment, or having been trained to do so, does not qualify an
individual as one who has authority to institute corrective measures on
behalf of the recipient. Notice as used in this paragraph includes but
is not limited to, a report of sexual harassment to the Title IX
Coordinator as described in Sec. 106.8(a). The regulations require a
recipient to respond to sexual harassment or allegations of sexual
harassment only if it has actual knowledge.
Current Sec. 106.44(a) states that a recipient with actual
knowledge of sexual harassment in its education program or activity
against a person in the United States must respond promptly in a manner
that is not deliberately indifferent. That section further states a
recipient is deliberately indifferent only if its response to sexual
harassment is clearly unreasonable in light of known circumstances.
Proposed regulations: Under proposed Sec. 106.44(c)(1), an
elementary school or secondary school recipient would be obligated to
require all of its employees who are not confidential employees to
notify the Title IX Coordinator when the employee has information about
conduct that may constitute sex discrimination under Title IX.
Under proposed Sec. 106.44(c)(2)(i), all other recipients would be
obligated, at a minimum, to require any employee who is not a
confidential employee and who has authority to institute corrective
measures on behalf of the recipient to notify the Title IX Coordinator
when the employee has information about conduct that may constitute sex
discrimination under Title IX.
Under proposed Sec. 106.44(c)(2)(ii), all other recipients would
also be obligated, at a minimum, to require any employee who is not a
confidential employee and who has responsibility for administrative
leadership, teaching, or advising in the recipient's education program
or activity to notify the Title IX Coordinator when the employee has
information about a student being subjected to conduct that may
constitute sex discrimination under Title IX.
Under proposed Sec. 106.44(c)(2)(iii), all other recipients would
also be obligated, at a minimum, to require any employee who is not a
confidential employee and who has responsibility for administrative
leadership, teaching, or advising in the recipient's education program
or activity and has information about an employee being subjected to
conduct that may constitute sex discrimination under Title IX to
either: (A) notify the Title IX Coordinator when the employee has
information about conduct that may constitute sex discrimination
against employees under Title IX; or (B) provide the contact
information of the Title IX Coordinator and information about how to
report sex discrimination to any person who provides the information.
Under proposed Sec. 106.44(c)(2)(iv), all other recipients would
also be obligated,
[[Page 41437]]
at a minimum, to require all employees who are not confidential
employees, if any, to either: (A) notify the Title IX Coordinator when
the employee has information about conduct that may constitute sex
discrimination under Title IX; or (B) provide the contact information
of the Title IX Coordinator and information about how to report sex
discrimination to any person who provides information regarding conduct
that may constitute sex discrimination under Title IX.
Proposed Sec. 106.44(c)(3) would provide factors for a
postsecondary institution to consider when determining whether a person
who is a student and an employee would be subject to the requirements
in proposed Sec. 106.44(c)(2) for employees.
Proposed Sec. 106.44(c)(4) would explain that the requirements
under proposed Sec. 106.44(c)(1) and (2) would not apply when the only
employee with information about conduct that may constitute sex
discrimination under Title IX is the employee-complainant.
Reasons: The Department stated in the preamble to the 2020
amendments that the actual knowledge framework it adopted ``achieve[s]
important policy objectives that arise in the context of a school's
response to reports, allegations, or incidents of sexual harassment in
a school's education program or activity, including . . . respect for
complainants' autonomy, protection of complainants' equal educational
access while respecting the decisions of State and local educators to
determine appropriate supportive measures, remedies, and disciplinary
sanctions, consistency with constitutional due process and fundamental
fairness, and clear legal obligations that enable robust administrative
enforcement of Title IX violations.'' Id. at 30035 (footnotes omitted).
These objectives remain constant, and the Department submits that the
proposed regulations more effectively achieve these objectives while
ensuring that all recipients provide a nondiscriminatory educational
environment consistent with their duty under Title IX.
As explained in the discussion of the definition of ``actual
knowledge'' in the current regulations, current Sec. 106.30(a) defines
``actual knowledge'' as notice of sexual harassment or allegations of
sexual harassment to a recipient's Title IX Coordinator or any official
of the recipient who has authority to institute corrective measures on
behalf of the recipient, or to any employee of an elementary and
secondary school recipient. In addition, current Sec. 106.44(a) states
that a recipient with actual knowledge of sexual harassment in its
education program or activity against a person in the United States
must respond promptly in a manner that is not deliberately indifferent.
After reconsidering this issue in light of stakeholder feedback and a
recipient's obligation to ensure that its education program or activity
is free from sex discrimination regardless of notice, the Department
proposes that the most effective way to ensure that a recipient's
program or activity is free from sex discrimination is through
regulations that set out a recipient's particular obligations regarding
notification to the recipient's Title IX Coordinator and other
requirements for various employees who have information concerning
conduct that may constitute sex discrimination under Title IX. This
would include requiring particular categories of employees to take
specific actions when these employees have information about conduct
that may constitute sex discrimination under Title IX. In addition,
because the obligation under Title IX for a recipient to operate its
education program or activity free from sex discrimination extends to
all forms of sex discrimination, not just sexual harassment, these
obligations and employee actions must not be limited to sexual
harassment.
Under proposed Sec. 106.44(c), these specific employee obligations
would include either notifying the recipient's Title IX Coordinator
when the employee has information about conduct that may constitute sex
discrimination under Title IX or providing the contact information of
the recipient's Title IX Coordinator and information about how to
report sex discrimination to any person who provides the employee with
information about conduct that may constitute sex discrimination under
Title IX. Whether an employee would be obligated to notify the Title IX
Coordinator directly or provide the Title IX Coordinator's contact
information and information about reporting would depend on the
employee's role, including whether the employee is employed by an
elementary school or secondary school or other recipient, whether the
employee has authority to take corrective action or has responsibility
for administrative leadership, teaching, or advising in the recipient's
education program or activity, whether the conduct that may constitute
sex discrimination under Title IX affected students or employees, and
whether the employee meets the definition of a ``confidential
employee'' in proposed Sec. 106.2.
Elementary schools or secondary schools (proposed Sec.
106.45(c)(1)). Under proposed Sec. 106.44(c)(1), an elementary school
or secondary school would be obligated to require any employee who is
not a confidential employee to notify the Title IX Coordinator when the
employee has information about conduct that may constitute sex
discrimination under Title IX. This proposed requirement reflects the
Department's current position that in the elementary school and
secondary school setting, school administrators, teachers, and other
employees exercise a considerable degree of control and supervision
over a recipient's students, and requiring all nonconfidential
employees to notify the Title IX Coordinator about conduct that may
constitute sex discrimination under Title IX would implement Title IX's
guarantee of protection against sex discrimination in a manner that
best serves the needs and expectations of those students. The
Department agrees with the view expressed in the preamble to the 2020
amendments ``that employees at elementary and secondary schools stand
in a unique position with respect to students.'' Id. at 30040. In
addition, as explained in the preamble to the 2020 amendments,
``[e]lementary and secondary schools generally operate under the
doctrine of in loco parentis, under which the school stands `in the
place of' a parent with respect to certain authority over, and
responsibility for, its students'' and ``employees at elementary and
secondary schools typically are mandatory reporters of child abuse
under State laws for purposes of child protective services.'' Id. at
30039-40. This proposed amendment is also consistent with the
definition in the 2020 amendments of ``actual knowledge'' for
recipients that are elementary schools or secondary schools, which
imputes to the recipient the knowledge of any of its employees.
Recipients other than elementary schools and secondary schools
(proposed Sec. 106.44(c)(2)). As explained in the discussion of
proposed Sec. 106.44(a), in connection with the June 2021 Title IX
Public Hearing and listening sessions, OCR heard from stakeholders who
supported the ``actual knowledge'' definition or who wanted the
definition of ``notice'' to be narrowed even further and others who
expressed concern that the actual knowledge standard might be read to
enable a recipient to ignore sexual harassment simply because
allegations of harassing conduct were not reported to the right
employee. In addition, OCR also heard from several stakeholders in
connection with the June 2021 Title IX Public Hearing who cautioned the
[[Page 41438]]
Department not to impose a requirement that all postsecondary employees
report information about possible sexual harassment to the Title IX
Coordinator and to instead permit postsecondary institutions to craft
reporting procedures based on what will be most effective for ensuring
compliance with Title IX in their educational environment, while also
ensuring that students know what to expect before they share
information about conduct that may constitute sex discrimination under
Title IX with an employee.
The preamble to the 2020 amendments also discussed the desire to
provide autonomy to complainants in support of limiting the definition
of ``actual knowledge'' at postsecondary institutions to employees with
the authority to institute corrective measures on behalf of the
recipient. The preamble to the 2020 amendments stated that ``[t]he
extent to which a wide-net or universal mandatory reporting system for
employees in postsecondary institutions is beneficial, or detrimental,
to complainants, is difficult to determine, and research (to date) is
inconclusive.'' Id. at 30042 (citing Merle H. Weiner, A Principled and
Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 78-79, 82-84
(2017)). The preamble further stated that research demonstrates ``that
respecting an alleged victim's autonomy, giving alleged victims control
over how official systems respond to an alleged victim, and offering
clear options to alleged victims are critical aspects of helping an
alleged victim recover from sexual harassment.'' Id. at 30042-43
(citing Margaret Garvin & Douglas E. Beloof, Crime Victim Agency:
Independent Lawyers for Sexual Assault Victims, 13 Ohio St. J. Crim. L.
67, 69-70, 71-72 (2015); Patricia A. Frazier et al., Coping Strategies
as Mediators of the Relations Among Perceived Control and Distress in
Sexual Assault Survivors, 52 J. Counseling Psych. 3 (2005); Ryan M.
Walsh & Steven E. Bruce, The Relationships Between Perceived Levels of
Control, Psychological Distress, and Legal System Variables in a Sample
of Sexual Assault Survivors, 17 Violence Against Women 603, 611 (2011);
Nancy Chi Cantalupo, For the Title IX Civil Rights Movement:
Congratulations and Cautions, 125 Yale J.L. & Feminism 281, 291 (2016);
Weiner at 117). The preamble to the 2020 amendments explained that
through the current regulations, ``the Department aims to respect the
autonomy of complainants and to recognize the importance of a
complainant retaining as much control as possible over their own
circumstances following a sexual harassment experience, while also
ensuring that complainants have clear information about how to access
the supportive measures a recipient has available (and how to file a
formal complaint initiating a grievance process against a respondent if
the complainant chooses to do so) if and when the complainant desires
for a recipient to respond to the complainant's situation.'' Id. at
30043. The Department further asserted in the preamble that
``complainants will benefit from allowing postsecondary institutions to
decide which of their employees (aside from the Title IX Coordinator,
and officials with authority) may listen to a student's disclosure of
sexual harassment without being mandated to report the sexual
harassment incident to the Title IX Coordinator.'' Id. at 30113.
The Department continues to recognize the importance of complainant
autonomy outside of the context of elementary school and secondary
school settings, as discussed in the preamble to the 2020 amendments,
and also recognizes concerns expressed by stakeholders that the
limitation on which employees are covered by the definition of ``actual
knowledge'' under current Sec. 106.30(a) for postsecondary
institutions is too narrow and insufficient to ensure that recipients
meet their obligation under Title IX to operate their education
programs or activities free from sex discrimination. In view of this,
the Department's tentative position is that it would be appropriate to
obligate recipients other than elementary schools or secondary schools
to require any employee who is not a confidential employee and who has
authority to institute corrective measures on behalf of the recipient
to notify the Title IX Coordinator when the employee has information
about conduct that may constitute sex discrimination under Title IX.
The Department's tentative position is also that it would be
appropriate to obligate recipients other than elementary schools or
secondary schools to require any employee who is not a confidential
employee and who has responsibility for administrative leadership,
teaching, or advising in a recipient's education program or activity,
to notify the Title IX Coordinator when the employee has information
about a student being subjected to conduct that may constitute sex
discrimination under Title IX.
Requiring employees with the authority to institute corrective
measures to notify the Title IX Coordinator when they have information
about conduct that may constitute sex discrimination under Title IX is
generally consistent with the definition of ``actual knowledge'' in the
sexual harassment context in current Sec. 106.30(a). Although
employees with responsibility for administrative leadership, teaching,
and advising in the recipient's education program or activity may not
actually have the authority to institute corrective measures on behalf
of the recipient, these employees are responsible for providing aid,
benefits, or services to students. In light of this responsibility, it
is likely that a student would view these employees as persons who
would have the authority to redress sex discrimination or to whom they
could provide information regarding sex discrimination with the
expectation that doing so would obligate the recipient to act. The same
is true for employees with administrative roles who are not student-
facing (e.g., a director of an employee benefits program). With respect
to employees who have responsibility for administrative leadership,
teaching, or advising, the Department proposes requiring these
employees to notify the Title IX Coordinator only when they have
information about a student being subjected to conduct that may
constitute sex discrimination under Title IX. The Department's proposal
is based on its current view that students are differently situated
than employees and may be less capable of self-advocacy than employees.
The different characteristics of students and employees are explained
in greater detail in the discussion of the Framework for Grievance
Procedures for Complaints of Sex Discrimination (Section II.F).
The Department also now believes that it would be appropriate to
provide recipients other than elementary schools and secondary schools
with the option to determine, based on their own administrative
structure, education community, and State or local legal requirements,
the notification obligations of certain types of employees. This would
include employees who are not confidential employees and who have
responsibility for administrative leadership, teaching, or advising in
the recipient's education program or activity who have information
about an employee being subjected to conduct that may constitute sex
discrimination under Title IX and all other employees who are not
confidential employees, if any, who have information about conduct that
may constitute sex discrimination under
[[Page 41439]]
Title IX. Thus, under proposed Sec. 106.44(c)(2)(iii) and (iv), these
recipients would have discretion to determine whether these types of
employees must either: (A) notify the Title IX Coordinator when they
have such information; or (B) provide the contact information of the
Title IX Coordinator and information about how to report sex
discrimination when they receive such information. The recipient would
have discretion to determine which of these two actions these types of
employees must take.
The Department's current view is also that complainant autonomy and
the ability to seek out confidential resources would be better
supported by proposing a definition of ``confidential employee'' and
requirements for confidential employees than by limiting the category
of employees at recipients other than elementary schools and secondary
schools who must notify the Title IX Coordinator of conduct that may
constitute sex discrimination under Title IX. The proposed definition
of ``confidential employee'' and requirements for confidential
employees are explained in greater detail in the discussion of the
proposed definition of ``confidential employee'' (Sec. 106.2) and
proposed requirements for confidential employees (Sec. 106.44(d)).
The Department explained in the preamble to the 2020 amendments
that a recipient is required to notify all students or employees ``of
the contact information for the Title IX Coordinator and how to report
sexual harassment for purposes of triggering a recipient's response
obligations,'' but expressed the belief ``that students at
postsecondary institutions benefit from retaining control over whether,
and when, the complainant wants the recipient to respond to the sexual
harassment that the complainant experienced.'' Id. at 30040. The
Department agrees that requiring this type of general notification is
necessary to effectuate the goals of Title IX and proposed Sec.
106.8(a)(2) and (c)(2) would require similar notifications. The
Department's current understanding, however, is that in addition to
these general notification requirements, recipients other than
elementary schools or secondary schools should also have additional
notification requirements when certain types of employees who are not
confidential employees have information about conduct that may
constitute sex discrimination under Title IX. The determination whether
the employee would be required to notify the Title IX Coordinator of
information about conduct that may constitute sex discrimination under
Title IX or provide the contact information of the Title IX Coordinator
and information about how to report sex discrimination would be made by
the recipient and not the employee. A recipient would make this
determination, and could do so either by determining that one of these
two options would be more appropriate for the role and responsibilities
of an individual employee or a group of employees (e.g., all employees
who interact with students in the dining hall or all public safety
officers or all employees with a particular employment status).
Proposed Sec. 106.44(c)(2)(iii) and (iv) would, however, require that
if a recipient does not require these types of employees to notify the
Title IX Coordinator about conduct that may constitute sex
discrimination under Title IX, the employee must be required to provide
the contact information of the recipient's Title IX Coordinator as well
as information regarding how to report sex discrimination to the person
who shared the information about conduct that may constitute sex
discrimination under Title IX. The Department's current understanding
is that although it is appropriate to provide recipients other than
elementary schools or secondary schools with some discretion regarding
the reporting responsibilities of certain categories of nonconfidential
employees, to fulfill the goals of Title IX it would be necessary for a
recipient to require that any person who provides information regarding
conduct that may constitute sex discrimination under Title IX also
receive information regarding how they can contact the recipient's
Title IX Coordinator and report or make a complaint of sex
discrimination if they decide that they want the recipient to take the
specific steps outlined in proposed Sec. 106.44, proposed Sec.
106.45, and if applicable proposed Sec. 106.46.
Employee with the authority to institute corrective measures. The
Department's current position, which is consistent with the
Department's position in the 2020 amendments, is that whether an
employee has the authority to institute corrective measures on behalf
of a recipient is a fact-specific determination that rests on the
recipient's own policies regarding whether an employee has the
authority to take action to address sex discrimination on behalf of the
recipient. As explained in the preamble to the 2020 amendments, this
determination is best left up to the recipient because ``[d]etermining
whether an individual is an `official with authority' is a legal
determination that depends on the specific facts relating to a
recipient's administrative structure and the roles and duties held by
officials in the recipient's own operations'' and ``[p]ostsecondary
institutions ultimately decide which officials to authorize to
institute corrective measures on behalf of the recipient.'' Id. at
30039-40. The preamble to the 2020 amendments further noted that
``[t]he Supreme Court viewed this category of [employees] as the
equivalent of what 20 U.S.C. 1682 calls an `appropriate person' for
purposes of the Department's resolution of Title IX violations with a
recipient.'' Id. at 30039 (citing Gebser, 524 U.S. at 290 (``An
`appropriate person' under Sec. 1682 is, at a minimum, an official of
the recipient entity with authority to take corrective action to end
the discrimination.'')). The Department also explained that ``a
recipient also may empower as many officials as it wishes with the
requisite authority to institute corrective measures on the recipient's
behalf.'' Id. at 30107.
Employee with responsibility for administrative leadership,
teaching, or advising. It is the Department's current understanding
that employees with responsibility for administrative leadership would
include deans, coaches, public safety supervisors, and other employees
with a similar level of responsibility, such as those who hold
positions as assistant or associate deans and directors of programs or
activities. The Department anticipates that employees with teaching
responsibilities would include any employee with ultimate
responsibility for a course, which could include full-time, part-time,
and adjunct faculty members as well as graduate students who have full
responsibility for teaching and grading students in a course. It is the
Department's current understanding that employees with responsibility
for advising would include academic advisors, as well as employees who
serve as advisors for clubs, fraternities and sororities, and other
programs or activities offered or supported for students by the
recipient. When a person is both a student and an employee, the
Department expects that the person would be required to notify the
Title IX Coordinator only of information that may constitute sex
discrimination under Title IX that was shared with the person while
they were fulfilling their employment responsibilities (e.g., receiving
information about sex discrimination from a student during class or
office hours). Similar to employees who have the authority to institute
corrective
[[Page 41440]]
measures on behalf of the recipient, the Department now believes that
whether an employee has responsibility for administrative leadership,
teaching, or advising is a fact-specific determination to be made by
the recipient taking into account the types of factors just discussed
and any others that may be relevant in the recipient's educational
environment.
Information about conduct that may constitute sex discrimination
under Title IX. The Department anticipates that under proposed Sec.
106.44(c), it would not be necessary for the employee to have factual
information that definitively indicates that sex discrimination
occurred in order for the employee's notification requirements under
proposed Sec. 106.44(c) to apply. Rather, it would be enough for the
employee to have information about conduct that could reasonably be
understood to constitute sex discrimination under Title IX, including
conduct that could constitute sex-based harassment. This is similar to
the position the Department took in the preamble to the 2020 amendments
explaining that the recipient ``need not have received notice of facts
that definitively indicate whether a reasonable person would determine
that the complainant's equal access has been effectively denied'' in
order to prompt its obligation to respond under current Sec. 106.44
because the obligation to respond is also prompted by allegations of
sexual harassment. Id. at 30192. The Department also notes that under
proposed Sec. 106.8(d)(1)(ii), a recipient would be required to train
all employees on the scope of conduct that constitutes sex
discrimination under Title IX, including the definition of ``sex-based
harassment'' in proposed Sec. 106.2. The Department's current belief
is that this proposed training requirement would help recipients ensure
that employees are able to recognize when they have information about
conduct that may constitute sex discrimination under Title IX.
The Department also currently believes that an employee may receive
information about conduct that may constitute sex discrimination under
Title IX in a variety of ways, which is similar to the position the
Department took in the 2020 amendments. See, e.g., id. at 30110, 30115,
30040 (noting that allegations of sexual harassment can come from any
source, i.e., from the person alleged to be the victim of sexual
harassment, from any third party such as a friend, parent, or witness
to sexual harassment, or from the employee's firsthand observation of
conduct that could constitute sexual harassment). Under the proposed
regulations, similar to the discussion in the preamble to the 2020
amendments, an employee may witness sex discrimination, hear about sex
discrimination allegations from a complainant or witness, receive
information or a written or verbal complaint about sex discrimination
from someone other than the complainant, including another student, a
parent, a member of the local community, or the media, or learn of
conduct that may constitute sex discrimination under Title IX by any
other means. These other means could include indirectly learning of
conduct that may constitute sex discrimination under Title IX, for
example, through flyers about the conduct distributed at the school or
posted around the school.
The Department also notes the increasing use of social media and
other online platforms as a means of communication between students and
the rise of online harassment as a form of sex-based harassment,
including on these platforms. The Department recognizes that online
harassment is constantly evolving as forms of these platforms evolve
and that harassment targeted at students and employees on these media
platforms may impact a recipient's education program or activity. The
Department does not expect that a recipient will follow the online
activity of its students that is not part of the recipient's education
program or activity; however, when an employee has information about
sex-based harassment among its students that took place on social media
or other online platforms and created a hostile environment in the
recipient's education program or activity, the recipient would have an
obligation to address that conduct. Therefore, a recipient under the
proposed regulations would be required to ensure that its employees
understand their obligation, depending on their role, to either provide
that information to the Title IX Coordinator or provide the Title IX
Coordinator's information and reporting information to the person who
alerted them to the conduct that may constitute sex-based harassment.
See Feminist Majority Found. v. Hurley, 911 F.3d 674, 688-89 (4th Cir.
2018) (holding that a recipient cannot ignore ``the sexual harassment
that pervaded and disrupted its campus solely because the offending
conduct took place through cyberspace''). For example, consider a
situation in which sexually explicit photographs of a student have been
posted on a social media group used by a number of students who attend
school together. Several students discuss these photographs and make
comments about them to the student during class and a student who
witnesses this reports it to a teacher. As a result of the discussion
and comments in class, the student in the photographs skips classes and
extracurricular activities to avoid those students who made comments to
her. Although the photographs were on social media, the students'
engagement with the explicit photographs at school and comments about
them to the affected student would create a hostile environment in the
recipient's education program or activity because the conduct was
sufficiently severe or pervasive that it denied or limited that
student's ability to participate or benefit from the school's education
program or activity.
Student employees (proposed Sec. 106.44(c)(3)). The Department
recognizes that a person may be both a student and an employee of a
postsecondary institution. In such cases a postsecondary institution
would need to make a fact-specific inquiry to determine whether the
requirements of proposed Sec. 106.44(c)(2) would apply. To guide a
postsecondary institution in making this determination, proposed Sec.
106.44(c)(3) would set out two factors that a postsecondary institution
must consider, at a minimum: whether the person's primary relationship
with the postsecondary institution is to receive an education and
whether the person learns of conduct that may constitute sex
discrimination under Title IX while the person was performing
employment-related work. The Department's view is that a postsecondary
institution must consider these factors because they appropriately
focus the inquiry on the primary relationship between the person and
the postsecondary institution (e.g., whether the person is a full-time
employee who enrolls in a class outside of work hours or a student who
works part-time for the postsecondary institution as part of the
student's financial aid package) and the student-employee's role or
activities when the information regarding conduct that may constitute
sex discrimination under Title IX was received (e.g., whether they were
in their work environment or elsewhere fulfilling work-related
responsibilities, or in class as a student, in the cafeteria with
friends, or in an extracurricular activity). Nothing in proposed Sec.
106.44(c)(3) would prohibit a postsecondary institution from
considering additional factors in determining whether a person is
primarily a student or an employee.
Employee-complainants (proposed Sec. 106.44(c)(4)). The Department
[[Page 41441]]
proposes that it would be inappropriate to require an employee to
notify the Title IX Coordinator of information about conduct that may
constitute sex discrimination under Title IX when the only employee
with the information is the employee-complainant. The Department
recognizes that not all employee-complainants may feel comfortable
reporting sex discrimination to the recipient's Title IX Coordinator.
The Department's current view is that in general, employees can
reasonably be expected to have more information and capacity than
students to notify the Title IX Coordinator that they were subjected to
sex discrimination if they want the recipient to take action because
employees are required to be trained on the recipient's reporting
requirements. In view of this, the Department currently believes that
the decision as to whether to notify the Title IX Coordinator that the
employee was subjected to sex discrimination or make a complaint of sex
discrimination, including sex-based harassment, should be left up to
the employee-complainant. Under proposed Sec. 106.44(c)(4), if an
employee-complainant tells another employee that they were subject to
sex discrimination, that employee would be required to comply with the
requirements under proposed Sec. 106.44(c)(1) or (2).
Sections 106.44(d) and 106.2 ``Confidential employee'' requirements and
definition
Current regulations: Sections 106.30(a) and 106.44(a) require a
recipient to respond to incidents of sexual harassment when the
recipient receives notice through its Title IX Coordinator or any
official who has authority to institute corrective measures on its
behalf, or through any employee of an elementary school or secondary
school. The current regulations do not refer to confidential employees,
or any group of employees to which reporting would not obligate the
recipient to respond.
Proposed regulations: The Department proposes adding a definition
of ``confidential employee'' and specifying certain requirements for
those employees when they are informed of conduct that may constitute
sex discrimination under Title IX. Proposed Sec. 106.44(d) would make
clear that an employee covered by the definition of ``confidential
employee'' in proposed Sec. 106.2 would not be required to notify the
Title IX Coordinator when a person informs them of conduct that may
constitute sex discrimination under Title IX. Instead, proposed Sec.
106.44(d) would require a recipient to notify all participants in the
recipient's education program or activity of the identity of its
confidential employees, if any, and require that a confidential
employee, in response to a person who informs that employee of conduct
that may constitute sex discrimination under Title IX, explain their
confidential status and provide that person with the contact
information of the recipient's Title IX Coordinator and explain how to
report information about conduct that may constitute sex discrimination
under Title IX.
The Department's proposed definition of ``confidential employee''
would include three categories. The first category would include
employees whose communications are privileged under Federal or State
law associated with their role or duties for the institution. The
second category would include employees whom the recipient has
designated as a confidential resource for the purpose of providing
services to individuals in connection with sex discrimination. If the
employee also has a role or duty that is not associated with providing
these services, the employee's status as confidential would be limited
to information received about sex discrimination in connection with
providing these services. The third category would be limited to
employees of postsecondary institutions who conduct human subjects-
research studies that have been approved by the recipient's
Institutional Review Board (IRB) and that are designed to gather
information about sex discrimination. Those employees' status as
confidential would be limited to information about sex discrimination
received while conducting the approved study.
Reasons: As explained in the discussion of proposed Sec.
106.44(a), the Department proposes clarifying the action a recipient
must take in response to sex discrimination in its education program or
activity.
OCR received comments through listening sessions and the June 2021
Title IX Public Hearing that stressed the importance of access to
confidential resources for persons who have been subjected to sex-based
harassment, including sexual violence. For example, one stakeholder
emphasized the need for schools to have a mechanism for confidential
reporting to allow students to receive supportive measures without
disclosing their identity to their harasser or initiating a Title IX
investigation.
The Department explained in the preamble to the 2020 amendments
that because postsecondary institutions have the discretion to decide
who to authorize as officials with authority under current Sec.
106.30(a), a postsecondary institution can ``decide that other
employees should remain confidential resources to whom a student at a
postsecondary institution might disclose sexual harassment without
automatically triggering a report by the employee to the Title IX
Coordinator.'' 85 FR 30526. As a result of the proposed changes
reflected in proposed Sec. 106.44(a) and (c), it is important to
clarify a recipient's responsibilities in relation to its employees who
provide confidential services.
The proposed role for confidential employees would take into
account the need for a recipient to find out about and promptly take
action in response to sex discrimination in its education program or
activity, as discussed regarding proposed Sec. 106.44(a) through (c),
and the importance of ensuring that persons who have experienced
discrimination also have access to confidential services when
appropriate. Under proposed Sec. 106.44(d), a confidential employee
would not be expected to report what they learn about sex
discrimination to the Title IX Coordinator, but the recipient would be
required to take certain steps to ensure that persons who report sex
discrimination to a confidential employee understand the employee's
confidential status and how to report sex discrimination to the Title
IX Coordinator. Ensuring that some employees are able to receive
confidential reports of sex discrimination, including sex-based
harassment, is a longstanding priority for the Department and would be
consistent with the practices of many schools both before and since the
2020 amendments. The Department also notes that making confidential
employees available may also result in more individuals feeling
comfortable to seek the support they need to address the immediate
effects of sex-based harassment or other sex discrimination and
ultimately find the confidence to make the recipient aware of incidents
that may otherwise have gone unreported.
The first category of confidential employees would include
employees whose communications are privileged under Federal or State
law associated with their role or duties. For example, physicians and
clergy affiliated with the institution could be considered confidential
employees under this first category. Current Sec. 106.45(b)(1)(x)
prohibits a recipient from using information protected under a legally
recognized privilege, and current Sec. 106.45(b)(5)(i) prohibits a
recipient
[[Page 41442]]
from using a party's records that are made or maintained by a
physician, psychiatrist, psychologist, or other recognized professional
or paraprofessional in connection with the provision of treatment to
the party. The proposed regulations would provide similar protection
for legally recognized privileges by designating employees who hold
these privileges as confidential employees. The proposed regulations
are also consistent with prior OCR guidance and the exemption of
pastoral and professional counselors from reporting obligations under
the Clery Act. See 2014 Q&A on Sexual Violence at 22; 34 CFR
668.46(c)(8).
The second category of confidential employees would include
employees designated by the recipient to provide confidential services
to individuals who may have experienced or been accused of engaging in
conduct that may constitute sex discrimination. The information
received by these employees about sex discrimination would also be
confidential. For example, a recipient may designate certain employees
as advisors to students in its grievance procedures. These advisors
would serve as confidential employees while providing services to
individuals in connection with those grievance procedures. Employees
designated as confidential resources would not qualify as confidential
employees while engaged in other activities, such as teaching or
coaching. This category of confidential employees would enable
recipients to offer confidential resources to students without creating
overly broad exceptions. This proposed exception is consistent with the
Clery Act's exemption of employees from reporting obligations as campus
security authorities when they are acting as a pastoral or professional
counselor. 34 CFR 668.46(a), (b)(4)(iv), (c)(8).
The third category of confidential employees would apply in the
limited situation in which employees of postsecondary institutions are
conducting IRB-approved studies involving human subjects that are
designed to gather information about sex discrimination. For example,
participants in clinical trial or other research studies on sexual
violence in campus settings may reveal information about personal
experiences of sex-based harassment. If an employee were required to
report these incidents to the Title IX Coordinator, the researchers
would need to alert participants as part of the process for consenting
to participate in the study, i.e., during the informed consent process.
This would likely deter some individuals with relevant experience from
participating in or making full disclosures in the study. Sharyn J.
Potter & Katie M. Edwards, Institutional Title IX Requirements for
Researchers Conducting Human Subjects Research on Sexual Violence and
other Forms of Interpersonal Violence at 3-4 (2015), https://scholars.unh.edu/pirc_reports/3 (stating that if researchers inform
participants that the researchers must disclose names revealed during
research, ``[t]he result will likely be that students with relevant
victimization or perpetration experiences will not volunteer to
participate in research, which would likely deter from participating
the very people intended to be the primary subjects of the
investigation. This may severely restrict the ability of researchers to
gather credible data . . . .''). To enable postsecondary institutions
to conduct effective research studies on sex discrimination, including
studies that may assist postsecondary institutions with prevention or
effective responses to incidents of sex discrimination, the proposed
regulations would treat the employees who conduct these studies as
confidential employees while they are working in their capacity as
researchers for the study. See id. at 5. This designation as a
confidential employee would be limited to information received while
conducting the approved study.
To make informed decisions about reporting sex discrimination,
individuals must understand how to report such conduct and which
employees will provide information they receive about such conduct to
the recipient's Title IX Coordinator. Proposed Sec. 106.44(d)(1) would
require a recipient to inform students and any other participants in
the recipient's education program or activity of the identity of any
confidential employees. In addition, under proposed Sec. 106.44(d)(2),
whenever someone informs a confidential employee that sex
discrimination, including sex-based harassment or related peer
retaliation, may have occurred, the confidential employee would be
required to explain to that person the employee's confidential status
and how to report the conduct. As part of this explanation, the
confidential employee would be required to provide that person with the
contact information of the recipient's Title IX Coordinator and explain
how to report information about conduct that may constitute sex
discrimination under Title IX. These steps would help to ensure that
individuals who provide information about sex discrimination to
confidential employees understand what further steps they can take if
they would like to report sex discrimination or make a Title IX
complaint.
Nothing in proposed Sec. 106.44(c), (d), or (e) is intended to
exempt a recipient's employees--including confidential employees--from
complying with any obligations under Federal, State, or local law to
report sex discrimination, including sex-based harassment. In addition,
Sec. 106.6(f), to which the Department does not propose making any
changes, makes clear that the requirements in the Title IX regulations
do not alleviate recipient's obligations to its employees under Title
VII. The exceptions set out in proposed Sec. 106.44(d) pertain only to
a recipient's obligations under Title IX and would not alleviate any
obligations a recipient may have under Title VII to respond to
information about sex discrimination.
Section 106.44(e) Public awareness events
Current regulations: None.
Proposed regulations: In proposed Sec. 106.44(e), the Department
clarifies that when a postsecondary institution's Title IX Coordinator
is notified about conduct that may constitute sex-based harassment
under Title IX that was provided by a person during a public event held
on the postsecondary institution's campus or on an online platform
sponsored by a postsecondary institution to raise awareness about sex-
based harassment associated with a postsecondary institution's
education program or activity, the postsecondary institution would not
have to take action in response to this information under proposed
Sec. Sec. 106.44, 106.45, or 106.46 unless the information reveals an
immediate and serious threat to the health or safety of students or
other persons in the postsecondary institution's community. Although a
postsecondary institution would not be obligated to act in response to
information about individual allegations shared during a public
awareness event in the manner set out in proposed Sec. Sec. 106.44,
106.45, or 106.46, a postsecondary institution would be required to use
this information to inform its efforts to prevent sex-based harassment,
including by providing tailored training to address alleged sex-based
harassment in a particular part of its education program or activity or
at a specific location when information indicates there may be multiple
incidents of sex-based harassment.
Reasons: OCR received feedback from stakeholders during the June
2021 Title IX Public Hearing explaining that information about sex-
based harassment
[[Page 41443]]
may be revealed during events like Take Back the Night, which are
intended to empower students and promote public awareness about sex-
based harassment. These stakeholders explained that requiring employees
to report allegations of sex-based harassment that they learn about
during these events discourages students from participating in such
events.
After considering these issues, it is the Department's current
understanding that it would be appropriate under Title IX to take into
account the many benefits provided by public awareness events hosted by
postsecondary institutions or organized independently by a
postsecondary institution's students to raise awareness about sex-based
harassment, such as Take Back the Night or other forums at which a
postsecondary institution's students may disclose experiences with sex-
based harassment. In view of this, the Department's proposed
regulations at proposed Sec. 106.44(e) would include an exception to
the required action that a postsecondary institution must take in
response to information about conduct that may constitute sex-based
harassment under Title IX, specifically that when a postsecondary
institution's Title IX Coordinator is notified of information about
conduct that may constitute sex-based harassment under Title IX that
was provided by a person during public awareness events, the
postsecondary institution would not be obligated to act in response to
the information under proposed Sec. Sec. 106.44, 106.45, or 106.46.
This proposed exception would apply only to public awareness events
held on a postsecondary institution's campus or through an online
platform sponsored by a postsecondary institution because those are the
events where it is most likely that a postsecondary institution's
employees would be present and could hear information about conduct
that may constitute sex-based harassment. Without this exception, under
proposed Sec. 106.44(f), the Title IX Coordinator would be required to
take certain steps upon being notified of this information.
The Department notes that nothing in proposed Sec. 106.44(e) would
obligate a postsecondary institution's employees to attend public
awareness events. If an employee is in attendance, the notification
requirements under proposed Sec. 106.44(c)(2) would apply to the
employee, but the Title IX Coordinator's obligations under proposed
Sec. 106.44(f) upon being notified by the employee of information
about conduct that may constitute sex-based harassment under Title IX
would not apply. Under proposed Sec. 106.44(b), the recipient and the
recipient's Title IX Coordinator would still be obligated to monitor
the recipient's education program or activity for barriers to reporting
information about conduct that may constitute sex discrimination under
Title IX. The Department also notes that nothing in proposed Sec.
106.44(e) would prohibit a postsecondary institution from sharing the
contact information of the recipient's Title IX Coordinator or
information about how to report discrimination, including sex
discrimination, at public awareness events.
The proposed exception would not apply when a Title IX Coordinator
is notified of information shared during a public awareness event about
conduct that may constitute sex-based harassment under Title IX that
reveals an immediate and serious threat to the health or safety of
students or other persons in the postsecondary institution's community.
The language regarding immediate and serious threat to health or safety
is aligned with the language regarding emergency removals in current
Sec. 106.44(c) and proposed Sec. 106.44(h) and should be interpreted
in the same way as those terms are interpreted in the context of
emergency removals, as explained in the discussion of proposed Sec.
106.44(h). As noted in the discussion of proposed Sec. 106.44(c)(1),
the Department agrees with the position stated in the preamble to the
2020 amendments that employees at elementary schools and secondary
schools stand in a unique position with respect to responding to sex
discrimination affecting their students, and the Department anticipates
that it would be appropriate to limit the proposed exception for public
awareness events to postsecondary institutions. In addition, proposed
Sec. 106.44(e) would not bar a recipient from taking additional action
in response to information about conduct that may constitute sex-based
harassment shared at a public awareness event if it so chooses.
Proposed Sec. 106.44(e) would also clarify that although when a
postsecondary institution's Title IX Coordinator is notified of
information about conduct that may constitute sex-based harassment
under Title IX provided by a person at a public awareness event, the
postsecondary institution would not be obligated to act in response to
this information under proposed Sec. Sec. 106.44, 106.45, or 106.46,
the postsecondary institution would be required to use this information
to inform its efforts to prevent sex-based harassment. This use would
include providing tailored training to address alleged sex-based
harassment in a particular part of its education program or activity or
at a specific location, or when information indicates there may be
multiple incidents of sex-based harassment or when information
indicates a single incident of sex-based harassment has occurred and
there is a reasonable likelihood that additional incidents may occur at
that location in the future. Depending on the information provided, a
postsecondary institution might also take steps to protect against sex
discrimination at a particular location, such as enhanced lighting,
more frequent safety patrols. The proposed regulations would provide a
postsecondary recipient with discretion to determine the specific
manner in which it integrates the information from disclosures into its
prevention training. The Department also notes that proposed Sec.
106.44(e) is consistent with the requirements of at least one State law
regarding responses by postsecondary institutions to information
provided during public awareness events. See, e.g., N.Y. Educ. Law
Sec. 6446(1)(e) (2015) (stating that an institution is not required to
respond to information disclosed during a public awareness event but
permitting the institution to use the information provided at such
events to inform its education and prevention efforts).
In addition, Sec. 106.6(f), to which the Department does not
propose any changes, makes clear that the requirements under the Title
IX regulations do not alleviate a recipient's obligations to its
employees under Title VII. The public awareness event exception set out
in proposed Sec. 106.44(e) would pertain only to a postsecondary
institution's obligations under Title IX and would not alleviate any
obligations a postsecondary institution may have under Title VII to
respond to information about sex-based harassment.
Section 106.44(f) Title IX Coordinator Requirements
Current regulations: Section 106.44(a) requires a recipient's Title
IX Coordinator to promptly contact the complainant to discuss
supportive measures and to explain the process for filing a formal
complaint. Current Sec. 106.44(b)(1) states that a recipient must
follow a grievance process that complies with Sec. 106.45 in response
to a formal complaint.
Proposed regulations: Proposed Sec. 106.44(f) states that a
recipient must require its Title IX Coordinator to take the following
steps upon being notified of conduct that may constitute sex
[[Page 41444]]
discrimination under Title IX: (1) treat the complainant and respondent
equitably; (2) notify the complainant of the grievance procedures as
described in proposed Sec. 106.45, and if applicable proposed Sec.
106.46, and if a complaint is made, notify the respondent of the
applicable grievance procedures and notify the parties of the informal
resolution process as described in this section if available and
appropriate; (3) offer and coordinate supportive measures as described
in proposed Sec. 106.44(g), as appropriate, to the complainant and
respondent to restore or preserve that party's access to the
recipient's education program or activity; (4) in response to a
complaint, initiate the grievance procedures or informal resolution
process under Sec. 106.44(k) as described in proposed Sec. 106.45,
and if applicable proposed Sec. 106.46; (5) in the absence of a
complaint or informal resolution process, determine whether to initiate
a complaint of sex discrimination that complies with the grievance
procedures described in proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, if necessary to address conduct that may
constitute sex discrimination under Title IX in the recipient's
education program or activity; and (6) take other appropriate prompt
and effective steps to ensure that sex discrimination does not continue
or recur within the recipient's education program or activity, in
addition to remedies provided to an individual complainant.
Reasons: Treat the complainant and the respondent equitably. The
Department proposes retaining the general requirement in current Sec.
106.44(a) that a recipient must treat complainants and respondents
equitably, although the Department proposes moving this requirement
from current Sec. 106.44(a) to proposed Sec. 106.44(f)(1) to align
with other changes made to this provision. The Department also proposes
eliminating the two examples of equitable treatment that appear in
current Sec. 106.44(a) because they may be underinclusive. It is the
Department's current view that equitable treatment requires more than
providing supportive measures to the parties and following grievance
procedures prior to imposing disciplinary sanctions. This is explained
in greater detail in the discussion of proposed Sec. Sec. 106.45(b)(1)
and (h)(3) and (4).
The Department proposes modifying the two examples of equitable
treatment and moving them to proposed Sec. 106.45(h)(3) (a recipient
must provide remedies to a complainant as appropriate when it
determines sex discrimination occurred) and proposed Sec. 106.45(h)(4)
(a recipient must follow grievance procedures that comply with proposed
Sec. 106.45, and if applicable proposed Sec. 106.46, before imposing
disciplinary sanctions against a respondent), which address a
recipient's treatment of the parties in the context of its sex
discrimination grievance procedures. Proposed Sec. 106.45(b)(1) would
require a recipient's grievance procedures to treat the parties
equitably, consistent with the requirement in proposed Sec.
106.44(f)(1).
Notify the complainant of the recipient's sex discrimination
grievance procedures and inform the respondent of the grievance
procedures if a complaint of sex discrimination is made. The Department
proposes Sec. 106.44(f)(2)(i) to ensure that a complainant receives
information about their right to request that the recipient initiate
its grievance procedures. This provision is consistent with current
Sec. 106.44(a), which requires the Title IX Coordinator, as part of
the recipient's general response to actual knowledge of sexual
harassment, to promptly contact the complainant about the availability
of supportive measures and the process for making a complaint with the
recipient.
Because a recipient will not always learn of conduct that may
constitute sex discrimination under Title IX directly from a
complainant, proposed Sec. 106.44(f)(2) would require a Title IX
Coordinator, when the complainant's identity is known, to notify the
complainant of the grievance procedures for sex discrimination
complaints, and proposed Sec. 106.44(k) would give the recipient the
discretion to offer an informal resolution process, if available and
appropriate. When a Title IX Coordinator does not know the identity of
the complainant, the Title IX Coordinator may provide information about
the recipient's grievance procedures to the individual, if any, who
reported conduct that may constitute sex discrimination under Title IX.
Proposed Sec. 106.44(f)(2)(ii) would also require a Title IX
Coordinator to provide the respondent with information about its sex
discrimination grievance procedures if a complaint is made that
obligates the recipient to initiate those procedures. Although a
recipient would be required to publish notice of its grievance
procedures under proposed Sec. 106.8(b)(2), providing this information
to the respondent at the time the recipient initiates its sex
discrimination grievance procedures would ensure the respondent, and
the respondent's parent, guardian, or other authorized legal
representative in the case of an elementary school or secondary school
student, is adequately apprised of the grievance procedures and the
rights they afford the respondent. Proposed Sec. 106.44(f)(2)(ii)
would also require a Title IX Coordinator to provide the parties with
information about informal resolution, if available and appropriate,
when a complaint of sex discrimination is made.
Offer and coordinate supportive measures to the complainant and
respondent to restore or preserve that party's access to the
recipient's education program or activity. Proposed Sec. 106.44(f)(3)
would require a Title IX Coordinator to offer and coordinate supportive
measures to restore or preserve a party's access to the recipient's
education program or activity. The Department proposes requiring the
Title IX Coordinator to not only offer but also ``coordinate''
supportive measures. The Department added this coordination
requirement, which is not in current Sec. 106.44(a), to align this
provision with proposed Sec. 106.8(a)(1), which would require a
recipient to designate and authorize a Title IX Coordinator to
coordinate its efforts to comply with its responsibilities under the
regulations, including the Title IX Coordinator's responsibility to
provide supportive measures to the complainant and respondent to
restore or preserve a party's access to the recipient's education
program or activity. A more detailed explanation of the types of
supportive measures that are available to a complainant or a respondent
is included in the discussion of supportive measures in proposed Sec.
106.44(g).
In response to a complaint, initiate the applicable grievance
procedures or informal resolution process. In many instances, a
recipient and its Title IX Coordinator will learn of conduct that may
constitute sex discrimination under Title IX when a complaint is made.
In these circumstances, the recipient must initiate its grievance
procedures under proposed Sec. 106.45, and if applicable proposed
Sec. 106.46. These grievance procedures, each of which permit
recipients to offer an informal resolution process, are explained in
greater detail in the discussion of individual sections in proposed
Sec. Sec. 106.45 and 106.46.
Determine whether to initiate a complaint when a sex discrimination
complaint is not made. When a Title IX Coordinator is notified of
conduct that may constitute sex discrimination under Title IX, but a
complaint has not been made and an informal resolution process has not
been initiated, the Department currently believes that a Title IX
Coordinator must determine
[[Page 41445]]
whether to initiate a complaint of sex discrimination that complies
with the applicable grievance procedures as described in proposed Sec.
106.45, and if applicable proposed Sec. 106.46. A Title IX Coordinator
would do so after determining, on a case-by-case basis, that initiating
the recipient's grievance procedures is necessary to address conduct
that may constitute sex discrimination under Title IX in the
recipient's education program or activity. As explained in the
discussion of proposed Sec. 106.44(c), the Department continues to
recognize the importance of complainant autonomy in decisionmaking
about whether to request that the recipient initiate its grievance
procedures or participate in the recipient's grievance procedures.
Therefore, the Department currently believes a recipient should honor a
complainant's request not to proceed with a complaint investigation
when doing so is consistent with a recipient's obligation to ensure it
operates its education program or activity free from sex
discrimination.
The 2020 amendments authorize the Title IX Coordinator to initiate
the grievance procedures in current Sec. 106.45 by signing a ``formal
complaint'' as defined in current Sec. 106.30, while clarifying that
doing so does not make the Title IX Coordinator a complainant or party
for purposes of the complaint or the grievance procedures under current
Sec. 106.45. The 2020 amendments do not explain under what
circumstances a Title IX Coordinator may initiate a formal complaint;
however, the preamble to the 2020 amendments states that the
regulations ``leave recipients flexibility to investigate allegations
even where the complainant does not wish to file a formal complaint
where initiating a grievance process is not clearly unreasonable in
light of the known circumstances.'' 85 FR 30131. The preamble provides
one example of when a Title IX Coordinator might initiate a complaint--
when presented with allegations ``against a potential serial sexual
perpetrator''--but gives no guidance other than this example on what
factors a Title IX Coordinator should consider when determining to
initiate the recipient's grievance procedures. Id.
The Department also offers its current understanding about when a
Title IX Coordinator should initiate grievance procedures even though
the complainant elected not to make a complaint. Consistent with the
example provided in the preamble to the 2020 amendments, a Title IX
Coordinator should initiate a complaint when the alleged conduct
presents an immediate and serious threat to the health or safety of a
complainant or other persons or would prevent the recipient from
affording a nondiscriminatory environment for all students. To make
this decision, a Title IX Coordinator may weigh the following factors,
which take into account both a recipient's duty to ensure equal access
to its education program or activity and a nondiscriminatory
educational environment as well as the wishes of an individual
complainant not to proceed with a complaint investigation.
Risk of additional sex discrimination. Circumstances that
suggest a risk of additional acts of sex discrimination, including when
there have been other reports or complaints of sex discrimination by
the respondent or a history or pattern of behavior that suggests a risk
of future discrimination by the respondent (e.g., when a respondent
continues to subject others to unwelcome sexual attention despite
multiple unsuccessful efforts to address the respondent's behavior and
prevent continued harassment);
Seriousness of alleged sex discrimination. Whether the
alleged incident involved violent acts, threats of violence or
retaliation, or use of a weapon;
Age and relationship of the parties. The parties' ages and
roles within the recipient's education program or activity, including
whether there is a power imbalance between them, such as when a
professor is accused of sexually harassing a student; and
Scope of alleged sex discrimination. Information
suggesting a pattern, ongoing sex discrimination, or conduct alleged to
have occurred in a setting in which multiple individuals were impacted,
such as in a particular graduate program, in an extracurricular
activity, on in connection with a specific athletic team.
In addition to considering the alleged sex discrimination itself
and the factors above, the Department notes that a Title IX Coordinator
may also consider factors such as the ones below in determining whether
to initiate a complaint to address sex discrimination in the
recipient's education program or activity:
Availability of evidence to assess whether sex
discrimination occurred. When corroborating evidence such as video
footage, visitor logs, communication records, written documentation, or
multiple known witnesses is available, a Title IX Coordinator may
determine that initiating the recipient's grievance procedures would be
an effective step to address sex discrimination. The lack of such
information could weigh against initiating the recipient's grievance
procedures absent a cooperating complainant, in which case a recipient
would still need to comply with proposed Sec. 106.44(f)(6) and require
its Title IX Coordinator to take other appropriate prompt and effective
steps to ensure that sex discrimination does not continue or recur
within the recipient's education program or activity, in addition to
providing remedies to an individual complainant; and
Disciplinary Sanctions. A Title IX Coordinator may also
consider whether the alleged conduct, if established, might require
removal of the respondent from campus or another disciplinary
restriction on the respondent to end the discrimination and prevent its
recurrence, a factor that could counsel in favor of initiating the
recipient's grievance procedures because disciplinary sanctions are not
otherwise permitted.
Finally, the Department notes that in cases of sex discrimination
by a recipient's employee, a Title IX Coordinator may be more likely to
initiate the recipient's grievance procedures, even if the individual
complainant does not wish to do so, because of considerations specific
either to the affected workplace or the students with which the
employee works, if any.
Other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity. As explained in the discussion of
proposed Sec. 106.44(a), the Department has reconsidered the facts and
circumstances and now believes current Sec. 106.44 may not ensure that
a recipient with information about conduct that may constitute sex
discrimination under Title IX in its education program or activity will
take steps to end the discrimination and prevent its recurrence. The
current standard permits a recipient to limit its response to the steps
required in current Sec. 106.44(a) when the recipient has knowledge
that sexual harassment has or may have taken place. The Department
currently proposes in Sec. 106.44(a) to require a recipient to take
other appropriate prompt and effective responsive action to address sex
discrimination in its education program or activity by taking steps to
end any sex discrimination that has occurred, prevent its recurrence,
and remedy its effects in every case. A recipient has this obligation
because it is required under Title IX to operate its education program
or activity free from sex
[[Page 41446]]
discrimination. To effectuate that obligation, the Department proposes
requiring additional steps when a Title IX Coordinator is notified of
conduct that may constitute sex discrimination under Title IX. These
steps are designed to ensure a recipient addresses sex discrimination
by taking appropriate prompt and effective steps to end any
discrimination, prevent its recurrence, and remedy its effects.
Specifically, proposed Sec. 106.44(f)(6) would require a Title IX
Coordinator who has been notified of conduct that may constitute sex
discrimination under Title IX to take other appropriate prompt and
effective steps to ensure that sex discrimination does not continue or
recur. These steps would be taken in addition to any supportive
measures a Title IX Coordinator may offer an individual complainant
under proposed Sec. 106.44(f)(3) or remedies a complainant may receive
if a recipient either initiates its grievance procedures under proposed
Sec. 106.45, and if applicable proposed Sec. 106.46, and determines
that sex discrimination occurred or affords the parties an informal
resolution process. Proposed Sec. 106.44(f)(6) would further recognize
that, consistent with the recipient's obligation to operate its
education program or activity free from sex discrimination, a Title IX
Coordinator must take appropriate prompt and effective steps outside of
a recipient's grievance procedures, when necessary, to ensure that sex
discrimination does not continue or recur.
In addition, under proposed Sec. 106.44(f)(6), a Title IX
Coordinator would be required, as appropriate, to take other prompt and
effective steps in response to information about conduct that may
constitute sex discrimination under Title IX regardless of whether the
recipient has also initiated its grievance procedures or facilitated an
informal resolution process for the parties. The Department proposes
these additional steps to address two distinct concerns. First, sex
discrimination that is not investigated through a recipient's grievance
procedures or addressed by the parties through an informal resolution
process, because a complaint was not made or initiated by the
recipient's Title IX Coordinator or the parties did not elect to
participate in an informal process when offered to them, may
nevertheless require prompt and effective action by the recipient so
sex discrimination does not continue or recur in its education program
or activity. And second, even if a recipient's grievance procedures or
informal resolution process fully resolve the parties' needs, sex
discrimination in the recipient's education program or activity may
impact individuals beyond the parties. In such cases, Title IX's
prohibition on sex discrimination would also require a recipient's
Title IX Coordinator to take additional prompt and effective steps to
ensure sex discrimination does not continue or recur for the
recipient's broader educational community. To address both concerns,
the Department proposes in Sec. 106.44(f)(6) that a recipient's Title
IX Coordinator would need to take other prompt and effective steps to
ensure a nondiscriminatory educational environment for the complainant
and for others within its educational environment who are affected by
the discrimination, as appropriate under the circumstances.
Although proposed Sec. 106.44(f)(6) does not prescribe the
specific steps that are necessary for a recipient to ensure that the
sex discrimination does not continue or recur in its education program
or activity, in all cases, a Title IX Coordinator's response must be
effective to end the sex discrimination, prevent its recurrence, and
remedy its effects. To ensure an effective response, the proposed
regulation would require that a Title IX Coordinator must consider the
report of possible sex discrimination in light of information
reasonably available to the Title IX Coordinator. A Title IX
Coordinator must also ensure that the response addresses any risk to
the complainant of harm that is related to the allegations of sex
discrimination, if a recipient did not initiate its grievance
procedures or facilitate an informal resolution process, and to others
within the school's educational environment who may be impacted by the
discrimination. The steps a Title IX Coordinator would need to take
will vary depending on the nature of the allegations, the source of the
complaint, the individuals involved (e.g., elementary school or
secondary school students, undergraduate or graduate students, faculty/
staff), the size and structure of the school, and other factors that
the recipient deems relevant. If a Title IX Coordinator's actions are
ineffective at ending the sex discrimination and preventing its
recurrence, the Title IX Coordinator would need to take additional,
different steps, to fulfill a recipient's obligation to address sex
discrimination in its education program or activity.
If a recipient addressed a complaint through its grievance
procedures, it may have access to specific information that the sex
discrimination had an impact on the recipient's educational community
beyond the parties. Even if a recipient did not investigate a complaint
through its grievance procedures, the recipient's Title IX Coordinator
may have access to information, including past reports to the Title IX
Coordinator, corroborating information such as video footage, visitor
logs available to the recipient, or written documentation, and any
other relevant information that suggest the conduct has impacted the
complainant and other members of the recipient's educational community.
A Title IX Coordinator may need to speak with the respondent, if known,
and other students or individuals who may have witnessed the reported
sex discrimination or have information about the sex discrimination to
determine what occurred or whether additional steps are necessary to
ensure that sex discrimination does not continue or recur in its
education program or activity.
The Department recognizes that it would not always be necessary for
a Title IX Coordinator to take additional steps to ensure that sex
discrimination does not continue or recur in its education program or
activity, for example, when the sex discrimination involved only the
parties and did not impact others participating or attempting to
participate in the recipient's education program or activity, and the
sex discrimination was addressed fully through a recipient's grievance
procedures or informal resolution process. However, in all cases, when
a recipient's response to sex discrimination is not effective to end
the sex discrimination and prevent the recurrence of discrimination for
the complainant or the recipient's broader educational community, under
the proposed regulations, a Title IX Coordinator must reevaluate the
recipient's response and implement other approaches. In addition, when
a Title IX Coordinator fails to take prompt and effective steps to end
sex discrimination and prevent its recurrence, a recipient would be
responsible for remedying the discriminatory effects of its inaction.
For example, if a Title IX Coordinator delayed responding to a report
of sex discrimination and as a result the complainant continued to
experience sex discrimination that caused the complainant's grades and
health to suffer, the recipient would be responsible for remedying
these harms. This may require a recipient to permit the complainant to
retake courses or resubmit assignments without academic or financial
penalty or to reimburse the complainant for counseling expenses
incurred while the recipient delayed responding. Affording remedies in
these
[[Page 41447]]
circumstances is also consistent with the proposed definition of
``remedies'' in Sec. 106.2. Thus, in all cases, Title IX's prohibition
on sex discrimination would require a recipient's Title IX Coordinator
to take prompt and effective steps, including by remedying the effects
of sex discrimination, to ensure that discrimination does not continue
or recur in its education program or activity.
When a recipient has not initiated its grievance procedures, a
Title IX Coordinator may need to take non-disciplinary action to stop
the discrimination, such as instituting restrictions on contact between
the parties, barring a third party from visiting the recipient's
campus, or other action consistent with the recipient's policies. In
some cases, after taking these steps, a Title IX Coordinator may learn
of additional incidents or obtain information that causes the Title IX
Coordinator to revisit whether to initiate a complaint under the
recipient's grievance procedures. For example, if the Title IX
Coordinator determines that the recipient must impose disciplinary
sanctions on a respondent to effectively end the sex discrimination and
prevent its recurrence, the Title IX Coordinator would need to initiate
the recipient's grievance procedures under proposed Sec. 106.45, and
if applicable proposed Sec. 106.46, and would be able to impose
sanctions only if there is a determination that the respondent violated
the recipient's policy prohibiting sex discrimination. However, in many
cases, a Title IX Coordinator's ability to take prompt and effective
steps to end the sex discrimination and prevent its recurrence may not
warrant imposition of discipline or otherwise require the Title IX
Coordinator to initiate its grievance procedures.
To ensure sex discrimination does not continue or recur and deny
equal access to its education program or activity for a recipient's
educational community, a Title IX Coordinator may need to provide
additional training for staff on how to respond appropriately to sex
discrimination, monitor known risks of sex discrimination in programs
and activities in which sex discrimination has been reported in the
past, or pursue strategies other than discipline to address the
conduct. For example, a Title IX Coordinator may need to take steps to
repair an educational environment in which sex discrimination occurred,
such as within a specific class, department, athletic team, or program.
A Title IX Coordinator may also consider providing educational
programming aimed at the prevention of sex discrimination.
Finally, a Title IX Coordinator's obligations under proposed Sec.
106.44(f)(6) may also include taking action related to a third party
who is engaging in sex discrimination. For example, if a Title IX
Coordinator is notified that a third party who is not a student or an
employee of the recipient is attending events organized by the
recipient and engaging in harassing or discriminatory behavior at such
events, the Title IX Coordinator would need to take prompt and
effective action to end such discrimination and prevent its recurrence
even if no complaint is made. In this example, the Title IX Coordinator
may choose to bar the third party from the recipient's events or campus
in general, or otherwise take appropriate prompt and effective steps to
ensure sex discrimination does not continue or recur in its education
program or activity.
Section 106.44(g) Supportive Measures
Current regulations: Section 106.44(a) of the current regulations
requires a recipient to treat complainants and respondents equitably by
offering supportive measures to a ``complainant'' as defined in current
Sec. 106.30, and following a grievance process that complies with
current Sec. 106.45 before imposing disciplinary sanctions or taking
any action that is not a supportive measure with respect to a
respondent. Current Sec. 106.44(a) also requires a recipient's Title
IX Coordinator to promptly contact the complainant to discuss
supportive measures and to explain the process for filing a formal
complaint.
Proposed regulations: The Department proposes adding several
provisions to clarify a recipient's obligation to offer supportive
measures to a complainant or a respondent. Proposed Sec. 106.44(g)
would make clear that upon being notified of conduct that may
constitute sex discrimination under Title IX, a Title IX Coordinator
must offer supportive measures, as appropriate, to the complainant or
respondent to the extent necessary to restore or preserve that party's
access to the recipient's education program or activity. Proposed Sec.
106.44(g) would also clarify that for allegations of sex discrimination
other than sex-based harassment or retaliation, a recipient, its
employee, or other person authorized to provide aid, benefit or
services on the recipient's behalf is not required to alter the conduct
that is alleged to be sex discrimination for the purpose of providing a
supportive measure. Proposed Sec. 106.44(g)(1) provides examples of
supportive measures that a recipient could deem to be appropriate,
including but not limited to, counseling, extension of deadlines and
other course-related adjustments, campus escort services, increased
security and monitoring of certain areas of the campus, restrictions on
contact between the parties, leaves of absence, voluntary or
involuntary changes in class, work, housing, or extracurricular or any
other activity regardless of whether or not there is a comparable
alternative, and training and education programs related to sex-based
harassment.
Proposed Sec. 106.44(g)(2) would clarify that supportive measures
can include measures that burden a respondent, such as requiring
changes in a respondent's class, work, housing, extracurricular or any
other activity. Proposed Sec. 106.44(g)(2) would, however, place
limits on the ability of a recipient to impose measures that burden a
respondent, including requiring that such measures are imposed only
during the pendency of a recipient's grievance procedures under
proposed Sec. 106.45, and if applicable proposed Sec. 106.46,
requiring that they be terminated at the conclusion of the grievance
procedures, and requiring that they must be no more restrictive of the
respondent than necessary to restore or preserve the complainant's
access to the recipient's education program or activity. In addition,
under this proposed provision a recipient may not impose such
supportive measures for punitive or disciplinary reasons. Proposed
Sec. 106.44(g)(4) would also require the recipient to provide a
respondent burdened by a supportive measure with the opportunity to
seek modification or termination of such measures before they are
imposed, or, if necessary under the circumstances, as soon as possible
after the measure has taken effect, by appeal to an official other than
the one who originally imposed the measures. The Department further
proposes that a recipient must also provide a complainant or respondent
affected by a supportive measure with the opportunity to seek
additional modification or termination of such supportive measure if
circumstances change materially.
The proposed regulations would also permit a recipient to modify,
terminate, or continue supportive measures, other than those that
burden a respondent, at the conclusion of grievance procedures or the
informal resolution process (proposed Sec. 106.44(g)(3)); protect
complainant and respondent privacy by permitting disclosure of
supportive measures only as necessary to provide them or when a
recipient needs to
[[Page 41448]]
inform a party of supportive measures provided to another party in
order to restore or preserve that party's access to the education
program or activity (proposed Sec. 106.44(g)(5)); confirm that the
Title IX Coordinator would be responsible for offering and coordinating
supportive measures (proposed Sec. 106.44(g)(6)); require a recipient
to consult with the IEP team, 34 CFR 300.321, or Section 504 team, 34
CFR 104.35(c), when implementing supportive measures for an elementary
school or secondary school student with a disability (proposed Sec.
106.44(g)(7)(i)); and suggest that when implementing supportive
measures for a postsecondary student with disability, a recipient may
consult, as appropriate, with the individual or office that the
recipient has designated to provide support to students with
disabilities (proposed Sec. 106.44(g)(7)(ii)).
Reasons: Require a recipient to offer supportive measures to a
complainant or respondent. As explained in the discussion of amendments
to regulatory definitions in Section II.C, ``supportive measures''
would be defined in proposed Sec. 106.2 as non-disciplinary,
individualized measures that are offered as appropriate, as reasonably
available, without unreasonably burdening a party, and without fee or
charge to a complainant or respondent to: (i) restore or preserve that
party's access to the recipient's education program or activity,
including temporary measures that burden a respondent when such
measures are imposed for non-punitive and non-disciplinary reasons and
are designed to protect the safety of the complainant or the
recipient's educational environment, or deter the respondent from
engaging in sex-based harassment; or (ii) provide support to the
complainant or respondent through the recipient's grievance procedures
or informal resolution process.
Consistent with this definition, proposed Sec. 106.44(g) would
require a Title IX Coordinator to offer supportive measures not only to
a complainant, but also to a respondent, when necessary to accomplish
the objective of ensuring that party's access to the recipient's
education program or activity. The appropriate supportive measures
offered to a complainant or respondent would be determined by the
recipient, as set out in proposed Sec. 106.44(g), and would be offered
and coordinated by the Title IX Coordinator. Proposed Sec.
106.44(f)(3) and (g) would maintain the requirement from the current
definition of ``supportive measures'' in Sec. 106.30 that a Title IX
Coordinator must offer supportive measures to the complainant before or
after a complaint has been made or when no complaint has been made.
Depending on the circumstances, it might be appropriate for a Title IX
Coordinator to offer supportive measures to a respondent if, and then
after, the respondent has received notice of the allegations.
In addition, the proposed regulations would also clarify that
supportive measures are available for all forms of sex discrimination.
Despite the current definition of ``supportive measures'' in Sec.
106.30, which states that the measures are available for complainants
and respondents, current Sec. 106.44(a) requires only that a
recipient, in responding to actual knowledge of sexual harassment in an
education program or activity, offer supportive measures to a
complainant. To align with the current and proposed definitions of
``supportive measures,'' as well as proposed Sec. 106.44(a), the
Department proposes requiring a recipient to offer supportive measures
whenever a Title IX Coordinator is notified of any type of conduct that
may constitute sex discrimination under Title IX, not just sex-based
harassment. For allegations of sex discrimination other than sex-based
harassment or retaliation, proposed Sec. 106.44(g) would clarify that
a recipient's provision of supportive measures would not require the
recipient, its employee, or other person authorized to provide aid,
benefit or services on the recipient's behalf to alter the alleged
discriminatory conduct for the purpose of providing a supportive
measure. However, if the recipient determines that sex discrimination
occurred, the recipient would then be required to alter or end the
discriminatory conduct. For example, in response to a complaint about
sex discrimination in grading, a recipient would not be required to
change the complainant's grade as a supportive measure while an
investigation is pending. If the recipient determines that sex
discrimination in grading occurred, the recipient might then be
required to change the complainant's grade when providing a remedy to
the complainant.
A recipient has substantial discretion to offer supportive measures
including, when necessary, measures that burden a respondent. Proposed
Sec. 106.44(g)(1) is consistent with, and further clarifies, the
definition of ``supportive measures'' in current Sec. 106.30, which
confers broad discretion on a recipient in deciding which supportive
measures are reasonable. A recipient's discretion, however, would be
limited by the requirement to offer supportive measures to a
complainant or respondent only as appropriate to restore or preserve
that party's access to the recipient's education program or activity.
Supportive measures would also need to be reasonable in light of the
facts and circumstances surrounding the allegations and the grievance
procedures.
Factors a recipient may consider in offering such supportive
measures include: (1) the need expressed by the complainant or
respondent; (2) the ages of the parties involved, the nature of the
allegations, and their continued effects on the complainant or
respondent; (3) whether the parties continue to interact directly in
the recipient's education program or activity, including student
employment, shared residence or dining facilities, class, or while
using campus transportation; and (4) whether steps have already been
taken to mitigate the harm from the parties' interactions, such as
implementation of a civil protective order. In addition to these
factors, a recipient should consider the supportive measures a
complainant or respondent may need to facilitate their participation in
the recipient's grievance procedures or informal resolution process.
The Department recognizes that participation in grievance procedures or
an informal resolution process may necessitate supportive measures to
address not only the stress associated with participation, but also
conflicts with classes, assignment deadlines, student employment, and
other commitments that may arise as a result of that participation.
Proposed Sec. 106.44(g)(2) would also clarify that a recipient has
the discretion to impose supportive measures that temporarily burden a
respondent but not for the purpose of discipline or punishment. This is
consistent with the current definition of ``supportive measures,''
which requires that supportive measures be non-disciplinary and non-
punitive in nature and that they are not unreasonably burdensome to the
non-requesting party as a procedural protection for a respondent. 34
CFR 106.30. In the preamble to the 2020 amendments, the Department also
stated that any disciplinary sanctions described or listed by the
recipient in its own grievance process would constitute actions that
the recipient considers disciplinary and, thus, could not constitute
supportive measures under current Sec. 106.30. 85 FR 30182. OCR
received feedback from stakeholders through the June 2021 Title IX
Public Hearing, as well as in listening sessions, that requested
additional options for supportive measures during the pendency of an
investigation to protect the complainant's access to the
[[Page 41449]]
recipient's education program or activity. These stakeholders expressed
frustration that under the 2020 amendments, it appears that the only
supportive measures that burden a respondent that a recipient can
impose prior to resolving a complaint are mutual restrictions on
contact and expressed concern that preventing a recipient from imposing
supportive measures that burden a respondent could limit a
complainant's access to the recipient's education program or activity
even in cases in which the recipient concludes that it would be
reasonable to impose such temporary limits on the respondent.
Stakeholders also requested that the Department allow recipients to
take additional actions to protect a complainant's safety. The
Department heard from stakeholders who wanted to ensure that student
respondents were still able to access their education while the
recipient resolves a complaint through its grievance procedures,
emphasizing that a student respondent is entitled to procedural
protections prior to the implementation of any supportive measures that
would limit their educational access.
After careful consideration of these comments, the Department
proposes clarifying in Sec. 106.44(g) that supportive measures would
include measures that burden a respondent that are imposed temporarily
during the pendency of a recipient's grievance procedures under
proposed Sec. 106.45, and if applicable proposed Sec. 106.46. The
Department also proposes clarifying that supportive measures that
burden a respondent may include actions that a recipient has also
identified as possible disciplinary sanctions. After reweighing the
facts and circumstances, it is the Department's tentative position that
actions by a recipient are not inherently disciplinary simply because
they are listed as possible disciplinary sanctions, and that a
recipient may utilize them as supportive measures as long as such
actions are offered to restore or preserve a complainant's access to a
recipient's education program or activity and not imposed for punitive
or disciplinary purposes. In the Department's tentative view, these
clarifications would provide a recipient with more discretion to make
case-specific judgments about how best to proceed in cases in which one
party or the other will necessarily be denied some access to a program
or activity during the pendency of grievance procedures, but only if
the measures meet the proposed regulations' requirements to ensure
fairness to all parties as just described. In deciding which supportive
measures are reasonable, a recipient should consider whether supportive
measures that do not burden the respondent would suffice to preserve
the complainant's access to the recipient's education program or
activity and, if not, should consider the impact of any contemplated
supportive measures that temporarily burden the respondent or the
respondent's access to the recipient's education program or activity.
In undertaking this evaluation, a recipient must ensure that a
supportive measure preserves or restores the complainant's
nondiscriminatory access to the recipient's education program or
activity.
In light of feedback OCR received from stakeholders during
listening sessions and in connection with the June 2021 Title IX Public
Hearing emphasizing the potential harm to a respondent's education from
the unnecessary or inappropriate implementation of supportive measures
that burden the respondent and to ensure fairness for all parties to a
recipient's grievance procedures, the Department proposes, in Sec.
106.44(g)(2), to include limitations on a recipient's discretion to
impose these measures. The proposed limitations would require that
supportive measures that burden a respondent be imposed only during the
pendency of the recipient's grievance procedures and terminate
following the recipient's determination regarding the allegations in
the complaint. Further, proposed Sec. 106.44(g)(2) would require
supportive measures that burden a respondent to be reasonable and no
more restrictive than necessary to restore or preserve the
complainant's access to the education program or activity. The
Department proposes these limits to ensure not only that a recipient
considers the needs of the individuals involved, but also to ensure
that, even when similar actions are involved, supportive measures
remain distinct from disciplinary sanctions, which are consequences
that can be imposed only following a determination that the respondent
violated the recipient's prohibition on sex discrimination. As
explained in the discussions of proposed Sec. 106.44(h) and (i),
nothing in proposed Sec. 106.44(g)(2) should be construed as
precluding a recipient from removing a respondent from the recipient's
education program or activity on an emergency basis if the recipient
determines that an immediate and serious threat to the health and
safety of students or other persons justifies the removal and the
requirements of proposed Sec. 106.44(h) are otherwise followed, nor
would proposed Sec. 106.44(g)(2) preclude a recipient from placing an
employee respondent on administrative leave from employment
responsibilities under proposed Sec. 106.44(i).
The Department recognizes that by imposing supportive measures that
burden a respondent, the recipient is potentially requiring the
respondent to temporarily alter or forego access to the education
program or activity during the pendency of grievance procedures. In
view of this, the Department proposes requiring the recipient to
provide the respondent procedural protections when imposing such
measures. Proposed Sec. 106.44(g)(4) would therefore require a
recipient to provide a respondent with the opportunity to seek
termination or modification of a burdensome supportive measure before
the measure is imposed, or if necessary under the circumstances, as
soon as possible after the measure has taken effect, from an impartial
employee who is someone other than the employee who made the contested
decision. The employee imposing the supportive measures or reviewing a
request to terminate or modify such measures may be the Title IX
Coordinator, who is also tasked with coordinating any supportive
measures provided to the parties. However, to ensure that a respondent
receives an independent review, the Department proposes that neither
the Title IX Coordinator nor any other employee may both impose and
review the same supportive measures. Moreover, proposed Sec.
106.44(g)(4) would require that the recipient offer this opportunity to
review prior to imposing any supportive measures that burden a
respondent or, if necessary under the circumstances, as soon as
possible after the measure has taken effect. Offering the opportunity
for review prior to the imposition of the measures is preferable from
the standpoint of ensuring that a respondent is not unnecessarily
restricted or deprived of educational opportunities. Accordingly,
whenever it is practical and appropriate, the recipient should provide
the respondent an opportunity to review and seek modifications of
burdensome supportive measures prior to imposing them. Yet the
Department proposes to offer recipients flexibility concerning timing
in order to account for the wide range of supportive measures available
under proposed Sec. 106.44(g)(1) and to allow a recipient to take into
account the respondent's interests as well as other concerns, such as
ensuring the complainant's safety or
[[Page 41450]]
ability to access the educational environment. There may be times when
offering such a review is impractical until after supportive measures
that burden the respondent have been imposed. Proposed Sec.
106.44(g)(4) would also require a recipient to provide complainants and
respondents affected by a supportive measure with the opportunity to
seek additional modification or termination of such supportive measure
if circumstances change materially.
Proposed Sec. 106.44(g)(1) would specifically identify
restrictions on contact as an example of a supportive measure that may
be utilized by a recipient. Current Sec. 106.30 includes only mutual
restrictions on contact between the parties on the list of possible
supportive measures. However, in the preamble to the 2020 amendments,
the Department responded to concerns that mutual restrictions on
contact may unfairly burden a complainant, may be unnecessary, and may
fail to ensure complainant safety. 85 FR 30184. In particular,
stakeholders had asked the Department to clarify that recipients may
also impose non-mutual restrictions on the parties when appropriate.
Although the Department declined to modify Sec. 106.30 to include non-
mutual restrictions on contact in the list of supportive measures, the
preamble clarified that their absence from the list ``does not mean
that one-way no-contact orders are never appropriate.'' Id. Rather, the
Department noted in the preamble that ``[a] fact-specific inquiry is
required into whether a carefully crafted no-contact order restricting
the actions of only one party would meet the Sec. 106.30 definition of
supportive measures.'' Id. In particular, the Department recognized
that non-mutual no-contact orders may be necessary supportive measures
to enforce restraining or protective orders issued by a court. Id. The
preamble further explained that ``if a one-way no-contact order does
not unreasonably burden the other party, then a one-way no-contact
order may be appropriate.'' Id. OCR has since received feedback through
the June 2021 Title IX Public Hearing and listening sessions urging
clarification that temporary non-mutual no-contact orders are among
those supportive measures that a recipient may offer when necessary.
Stakeholders noted that by including mutual no-contact orders in the
list of supportive measures without a reference to non-mutual no-
contact orders, the 2020 amendments did not accurately communicate what
supportive measures a recipient may offer consistent with its
obligations under Title IX. These stakeholders stated that this
apparent gap would be particularly problematic in dating or domestic
violence situations when a respondent may manipulate or pressure a
complainant into violating a mutual no-contact order, putting the
complainant at risk of discipline as a result of the respondent's
behavior.
To ensure that recipients understand that they are not limited to
imposing mutual restrictions on contact between the parties as
supportive measures, the Department proposes eliminating the term
``mutual'' from the non-exhaustive list of supportive measures under
Sec. 106.44(g)(1). The Department also reiterates that the list of
possible supportive measures in proposed Sec. 106.44(g)(1) would be
illustrative and not exclusive. As with other supportive measures, a
recipient should consider the appropriateness and necessity of non-
mutual restrictions on contact in light of the factors described above,
including a party's expressed need for a non-mutual restriction, the
nature of the allegations and their continued effects on the parties,
and whether and how the parties continue to interact in the recipient's
education program or activity. In addition, because a non-mutual
restriction on contact may be a supportive measure that burdens a
respondent, a recipient should also pursue less restrictive supportive
measures to restore or preserve a complainant's access to the
recipient's education program or activity when possible and only impose
non-mutual restrictions on contact when necessary and when no other
supportive measure will suffice.
Finally, the Department also includes in proposed Sec.
106.44(g)(1) training and education programs related to sex-based
harassment as supportive measures. Training and education programs are
within the scope of the current definition of ``supportive measures''
in Sec. 106.30, which states that supportive measures are designed to
deter future sex-based harassment. The Department recognizes the
significant role training plays in shaping a school and campus climate
and environment, especially when the training is interactive and
incorporates hypothetical examples of scenarios that may arise for
recipients. In some circumstances, providing training and education
programs to parties regarding a recipient's policies may be helpful in
restoring or preserving access to a recipient's education program or
activity or may assist the parties in ensuring meaningful participation
in the recipient's grievance procedures. Although such training may be
implemented as a remedy following a determination that sex
discrimination occurred, there may also be circumstances in which
training is warranted during the pendency of the recipient's grievance
procedures or independent of the outcome of any grievance procedures.
For example, when a recipient receives a complaint of sex-based taunts
occurring at school athletic events, it may be clear to the recipient
that additional training for the larger school community is necessary
to preserve access to a recipient's education program or activity
regardless of the ultimate outcome of the complaint.
Duration of supportive measures. Proposed Sec. 106.44(g)(3) would
permit a recipient to terminate or modify supportive measures that do
not burden a respondent at the conclusion of its grievance procedures
under proposed Sec. 106.45, and if applicable proposed Sec. 106.46,
or at the conclusion of the informal resolution process under proposed
Sec. 106.44(k), or the recipient may continue to provide supportive
measures, as appropriate. The Department did not clarify in the 2020
amendments the duration of supportive measures or whether a recipient
may continue to offer them after the conclusion of its sexual
harassment grievance procedures, regardless of the outcome. However,
the Department did emphasize in current Sec. 106.44(a) that supportive
measures could be provided in the absence of a complaint, and in that
sense indicated that such measures would not be contingent on the
outcome of a complaint. Under proposed Sec. 106.44(g)(3), a recipient
would have the discretion to decide on a case-by-case basis how long
supportive measures are needed. The same factors used to make the
determination about which supportive measures to offer would also be
relevant to determinations about the duration of those measures,
including whether they remain necessary to restore or preserve a
complainant's or respondent's access to the recipient's education
program or activity, such as when the parties participate in the same
classes, student employment, residence, or dining facilities. Some
supportive measures, such as those that limit interactions between the
parties, may be necessary and appropriate to implement for the duration
of the parties' participation in the recipient's education program or
activity. Others, such as academic adjustments or counseling, may be
necessary for a shorter period of time, also depending on the
circumstances. As explained in the discussion of
[[Page 41451]]
proposed Sec. 106.44(g)(2), a recipient would be required to terminate
supportive measures that burden a respondent no later than the
conclusion of the recipient's grievance procedures under proposed Sec.
106.45, and if applicable proposed Sec. 106.46.
Confidentiality of supportive measures and Title IX Coordinator's
role. The current definition of ``supportive measures'' in Sec. 106.30
states that recipients must maintain as confidential any supportive
measures provided to the complainant or respondent except when doing so
would impair the recipient's ability to provide the supportive
measures. Proposed Sec. 106.44(g)(5) would preserve this requirement
and clarify that a recipient must ensure that it does not disclose
information about supportive measures to persons other than the
complainant or respondent unless necessary to provide the supportive
measures. A recipient may also inform a party of supportive measures
provided to, or imposed on, the other party only if necessary to
restore or preserve that party's access to the education program or
activity.
Proposed Sec. 106.44(g)(6) would incorporate the requirement from
the current definition of ``supportive measures'' and the requirement
in current Sec. 106.44(a) that a recipient's Title IX Coordinator is
responsible for offering and coordinating supportive measures. 34 CFR
106.30 and 106.44(a). This responsibility would not require the Title
IX Coordinator to be the employee who implements the supportive
measures, but the Title IX Coordinator would ultimately be responsible
for ensuring that the measures are implemented appropriately. For
example, if the Dean of Academic Affairs implements a supportive
measure during the recipient's grievance procedures to move a student
respondent from one laboratory to another and bar their entry into
their previous laboratory, the Title IX Coordinator would be
responsible for ensuring that the supportive measure is fully
implemented, including that the necessary personnel are notified to
deactivate the student respondent's identification card or otherwise
bar entry to the respondent's previous laboratory.
Addressing disagreements over supportive measures. The Department
recognizes that a complainant and respondent are impacted by a
recipient's decisions regarding supportive measures. In certain
situations, a complainant or respondent may not agree with a
recipient's decision to grant or deny a request for a specific
supportive measure, or may object to the decision to modify or
terminate an existing supportive measure. To ensure that parties are
afforded an opportunity to contest a recipient's decisions regarding a
supportive measure, proposed Sec. 106.44(g)(4) would provide a
mechanism for parties to seek review from an impartial employee who is
not the employee responsible for the contested decision and who has the
authority to change the supportive measure, if appropriate. The
Department further notes that although the opportunity to challenge a
supportive measure exists at the time a recipient makes an initial
decision to grant or deny a request for a specific supportive measure,
or a decision to modify or terminate an existing supportive measure,
proposed Sec. 106.44(g)(4) would also require a respondent to allow a
complainant or respondent to bring an additional challenge to a
decision regarding a supportive measure, including a burdensome
supportive measure, when circumstances change materially.
Administering supportive measures involving a student with a
disability. Finally, when a recipient implements a supportive measure
involving an elementary school or secondary school student with a
disability, proposed Sec. 106.44(g)(7)(i) would require the
recipient's Title IX Coordinator to consult with the student's IEP
team, 34 CFR 300.321, or the Section 504 team, 34 CFR 104.35(c), to
help ensure the recipient's implementation of supportive measures
complies with IDEA and Section 504. In the case of a postsecondary
student with a disability, proposed Sec. 106.44(g)(7)(ii) would permit
a recipient's Title IX Coordinator, as appropriate, to consult with the
person or office that the recipient designated to provide supports for
students with disabilities to help ensure compliance with Section 504
(e.g., disability services office), including consideration of any
disability-related modifications, adjustments, or services required
under Section 504. Because a postsecondary student with a disability is
not required to disclose a disability to their school or request
disability-related modifications, adjustments, or services, proposed
Sec. 106.44(g)(7)(ii) would leave it to the discretion of a
recipient's Title IX Coordinator to consult with the disability
services office in appropriate circumstances. For example, when a party
discloses to a postsecondary recipient's Title IX Coordinator that they
are a student with a disability, the recipient should discuss with the
party available resources including those provided through the
recipient's disability services office. The party may already receive
disability-related supports and services and may or may not require
additional supports, or the party may not wish to request disability-
related support in connection with the recipient's response to alleged
sex discrimination. In light of a postsecondary student's discretion to
request such services, the Title IX Coordinator should provide the
party information about available resources and honor the student's
request regarding whether to involve disability services office staff.
These protections would also ensure that a recipient appropriately
considers its obligations to comply with Federal disability rights laws
prior to offering supportive measures to a student as part of its
grievance procedures.
Section 106.44(h) Emergency Removal
Current regulations: Section 106.44(c) allows a recipient to remove
a respondent from its education program or activity on an emergency
basis following an individualized safety and risk analysis and a
determination that the respondent poses an immediate threat to the
physical health or safety of any student or other person arising from
the allegations of sexual harassment. Current Sec. 106.44(c) requires
a recipient that seeks to remove a respondent on an emergency basis to
provide the respondent with notice and an immediate opportunity to
challenge the removal. Current Sec. 106.44(c) further states that
emergency removal does not modify any rights under the IDEA, Section
504, or the Americans with Disabilities Act of 1990 (ADA).
Proposed regulations: The Department proposes broadening the
language in current Sec. 106.44(c), to permit emergency removal of a
respondent after a recipient conducts an individualized assessment and
determines that an immediate threat to the health or safety of any
student, employee, or other person arising from the alleged sex
discrimination exists, and moving it to proposed Sec. 106.44(h). To
afford protection for the full range of possible threats--physical and
non-physical--that a respondent may pose, the Department proposes
removing the limiting term ``physical'' and adding language that
focuses instead on the seriousness of the threat to a person's health
or safety (physical or non-physical).
Reasons: The Department recognizes the need to allow a recipient
flexibility to remove a respondent from its education program or
activity on an emergency basis, and expressly provides
[[Page 41452]]
for such removals in current Sec. 106.44(c). Consistent with other
changes to proposed Sec. 106.44, the Department proposes changing
emergency removal to permit a recipient to address threats arising from
all forms of alleged sex discrimination, and not limiting emergency
removal to alleged sex-based harassment.
In addition, OCR received feedback through the June 2021 Title IX
Public Hearing and listening sessions that current Sec. 106.44(c) sets
too high a bar to effectuate the provision's goal of safety.
Specifically, postsecondary institutions and safety compliance officers
noted that by limiting emergency removals to circumstances in which a
respondent poses an immediate threat to the physical health or safety
of any student or other individual arising from the allegations of
sexual harassment, current Sec. 106.44(c) fails to account for the
significant non-physical harms some respondents pose to complainants
and other individuals in connection with alleged sex-based harassment.
Some threats may present an immediate and serious non-physical threat
to student safety that warrants the emergency removal of a respondent
following an individualized assessment. For example, a complainant who
is stalked by a respondent may not experience a physical threat as a
result of stalking, yet the stalking could present a serious and
immediate threat to the student's mental health. The Department seeks
to address such serious non-physical threats on the same basis as
physical threats. Therefore, the Department proposes clarifying the
scope of threat to encompass all serious threats to health and safety,
which would include but is not limited to threats to physical health
and safety, to account for the non-physical threats that may justify
immediate action. To accomplish this change, the Department proposes
deleting the term ``physical'' as a restrictive qualifier on threats to
health and safety and adding the term ``serious'' to confirm that non-
serious threats do not warrant emergency removal. It is the
Department's tentative view that this proposed revision would give
recipients the necessary flexibility to ensure a safe campus community
while protecting the rights of all students. The Department further
notes that the current regulations require a recipient to provide ``the
respondent with notice and an opportunity to challenge the decision
immediately following the removal,'' 34 CFR 106.44(c), a protection
that the proposed regulations retain. Nothing in the current or
proposed regulations would preclude a respondent from bringing an
additional challenge to the emergency removal at a later time if
circumstances have changed or new facts come to light that warrant
reconsideration of the recipient's decision.
Section 106.44(i) Administrative Leave
Current regulations: Section 106.44(d) states that ``nothing in
this subpart precludes a recipient from placing a non-student-employee
respondent on administrative leave during the pendency of a grievance
process'' consistent with current Sec. 106.45, provided that in doing
so a recipient must not modify any rights available to a respondent
under Section 504 or the ADA.
Proposed regulations: The Department proposes maintaining current
Sec. 106.44(d) in proposed Sec. 106.44(i) with minor revisions. The
Department proposes changing ``nothing in this subpart'' to ``nothing
in this part,'' and clarifying that administrative leave would be
permitted during the pendency of the recipient's grievance procedures.
Reasons: The Department proposes changing ``nothing in this
subpart'' to ``nothing in this part'' to align with other proposed
changes to the regulations, including the relocation of the proposed
definitions from subpart D to subpart A. The Department also proposes
removing the term ``non-student'' to clarify that a recipient may place
any employee respondent on administrative leave. This change would
allow a recipient to treat its employees similarly with respect to the
conditions of their employment by allowing the recipient to place both
student-employees and non-student-employees on administrative leave
when appropriate. The Department also proposes removing the reference
to ``grievance process that complies with Sec. 106.45'' and clarifying
that this provision would apply to the recipient's grievance
procedures, which encompass the grievance procedures under proposed
Sec. 106.45, and if applicable proposed Sec. 106.46 The Department
proposes this change to ensure that the recipient has discretion to
place an employee respondent on administrative leave while following
grievance procedures described in proposed Sec. 106.45, and if
applicable proposed Sec. 106.46.
Section 106.44(j) Recipient Prohibition
Current regulations: Current Sec. 106.71(a) includes a requirement
that a recipient must keep confidential the identities of ``any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness, except as may be permitted by'' FERPA or
its regulations or required by law or to carry out the purposes of
Title IX.
Proposed regulations: In proposed Sec. 106.44(j), the Department
would limit a recipient's ability to disclose the identities of
parties, witnesses, or other participants when conducting an informal
resolution process under proposed Sec. 106.44(k), implementing
grievance procedures under proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, and requiring a Title IX Coordinator to take any
other appropriate steps under proposed Sec. 106.44(f)(6). The
Department would prohibit a recipient from disclosing the identity of a
party, witness, or others participating in the above-referenced
processes except when the person whose identity would be disclosed has
consented to the disclosure, when permitted by FERPA, when required by
law, or to carry out the purposes of Title IX.
Reasons: As explained in the discussion of proposed Sec.
106.44(a), a recipient has a duty under Title IX to operate its
education program or activity free from sex discrimination. The
Department's tentative view is that, in order to effectuate Title IX in
this regard, a recipient must refrain from disclosing the identities of
parties, witnesses, and others participating subject to the exceptions
listed in proposed Sec. 106.44(j) because such disclosures are likely
to chill participation in the recipient's efforts to address sex
discrimination.
Current Sec. 106.71(a) requires the recipient to keep confidential
the identities of the parties or witnesses except for reasons required
by law, permitted by FERPA, necessary to carry out Title IX
responsibilities, or when the parties themselves permit disclosure of
their own identities. The Department proposes changes to this
prohibition on disclosure for clarity and also proposes moving this
prohibition to proposed Sec. 106.44 because it relates to a
recipient's broader responsibilities to address information about
conduct that may constitute sex discrimination in its program or
activity, as addressed in proposed Sec. 106.44, and does not identify
conduct that constitutes ``retaliation,'' as defined in proposed Sec.
106.2.
The Department proposes modifying the protection of this provision
to apply beyond parties and witnesses to also
[[Page 41453]]
include others participating in the informal resolution process,
grievance procedures, and other appropriate steps taken by the Title IX
Coordinator. Others participating in these processes may include
advisors, parents, guardians, or other authorized representatives for
the parties, an interpreter for a person with limited English
proficiency, or a notetaker who provides services as a reasonable
modification for a person with a disability. Without a prohibition on
the recipient disclosing their identities, some of these other
individuals may be reluctant to participate in the recipient's Title IX
processes. Their lack of participation could, in turn, impair the
recipient's efforts to address information about conduct that may
constitute sex discrimination, including by affecting the equitable
treatment of the complainant and respondent as required by proposed
Sec. Sec. 106.44(f)(1) and 106.45(b)(1). In addition, the proposed
change aligns with how these individuals are described elsewhere in the
proposed regulations, including in proposed Sec. 106.71, and would
provide clarity while ensuring comprehensive coverage.
The Department also seeks to provide clarity by relocating the
prohibition on a recipient disclosing the identity of persons
participating in any way in its Title IX processes to proposed Sec.
106.44(j) because this requirement is not limited to retaliation, which
is the subject of proposed Sec. 106.71. The Department's tentative
position is that this change would reduce confusion and enhance clarity
about the scope of a recipient's obligation to keep these persons'
identities confidential. As in current Sec. 106.71(a), proposed Sec.
106.44(j) would prohibit a recipient from disclosing the identities of
parties, witnesses, or others participating in the recipient's Title IX
processes unless one of the stated exceptions applies. The Department
proposes retaining the stated exceptions from current Sec. 106.71(a)
with minor changes in wording to be consistent with the proposed
regulations. The prohibition in proposed Sec. 106.71(a) on
``retaliation,'' as defined in proposed Sec. 106.2, would also
continue to apply to any intimidation, threat, coercion, or
discrimination by the recipient for the purpose of retaliation,
including disclosures about persons participating in any of the
recipient's Title IX processes. In the preamble to the 2020 amendments,
the Department explained that unnecessary exposure of these persons'
identities for any reason may lead to retaliation:
[U]nnecessarily exposing the identity of any individual who has
made a report or complaint of sex discrimination, including any
individual who has made a report or filed a formal complaint of
sexual harassment, any complainant, any individual who has been
reported to be the perpetrator of sex discrimination, any
respondent, and any witness, may lead to retaliation against them
and [the Department] would like to prevent such retaliation.
85 FR 30537. Through the June 2021 Title IX Public Hearing, OCR
heard support for this prohibition because this type of disclosure may
directly raise the risk of, and even encourage, retaliation. These
stakeholders observed that once the information is released by the
recipient, students may take sides and engage in retaliation against
parties, witnesses, and those involved in administering the grievance
procedures. In addition, stakeholders noted that some students may not
choose to share with their classmates or family members that they
reported, made a complaint, or participated in the recipient's
grievance procedures, and disclosures by others could result in
disclosures to those individuals. The Department notes that the same
may be true for employees who may choose not to share their
participation with colleagues. The Department also reiterates that if
the disclosure were made for retaliatory purposes as discussed by
stakeholders, then it would constitute retaliation and would be
prohibited by proposed Sec. 106.71(a). However, the Department's
tentative view is that, in addition to a disclosure made for
retaliatory purposes, any disclosure for reasons other than those
permitted or required by proposed Sec. 106.44(j) may chill reporting
of sex discrimination or participation in the recipient's efforts to
address sex discrimination. Therefore, the Department's tentative
position is that, independent of its obligation to prohibit
retaliation, including its own retaliatory disclosure of the identities
of parties, witnesses, or other participants under proposed Sec.
106.71, the recipient must not disclose these identities other than as
provided in proposed Sec. 106.44(j) so that the recipient's own
actions do not create a barrier to these individuals' participation in
the recipient's efforts to address information that may constitute sex
discrimination. In this regard, the Department's proposal would clarify
that a recipient's disclosure of the identity of a party, witness, or
other participant except as otherwise specified, is prohibited.
Section 106.44(k) Informal Resolution Process
Current regulations: Section 106.45(b)(9) allows a recipient to
offer an informal resolution process that does not involve a full
investigation and adjudication, such as mediation, at any time prior to
reaching a determination regarding responsibility. This section also
requires a recipient to provide a written notice to the parties
disclosing the allegations; the requirements of the informal resolution
process, including the circumstances under which it precludes the
parties from resuming a formal complaint arising from the same
allegations; that at any time prior to agreeing to a resolution, any
party has the right to withdraw from the informal resolution process
and resume the grievance process with respect to the formal complaint;
and any consequences resulting from participating in the informal
resolution process, including the records that will be maintained or
could be shared. Recipients must first obtain the parties' voluntary,
written consent to the informal resolution process.
There are currently several restrictions on a recipient's
discretion to offer an informal resolution process. A recipient must
not offer or facilitate an informal resolution process to resolve
allegations that an employee sexually harassed a student; require
informal resolution as a condition of enrollment or continuing
enrollment, or employment or continuing employment, or enjoyment of any
other right, the waiver of the right to an investigation and
adjudication of formal complaints of sexual harassment; require the
parties to participate in an informal resolution process; or offer an
informal resolution process unless a formal complaint is filed.
Proposed regulations: The Department proposes adding Sec.
106.44(k)(1), which would specify that a recipient may offer an
informal resolution process at any time prior to determining whether
sex discrimination occurred, unless there are allegations that an
employee engaged in sex discrimination toward a student or such a
process would conflict with Federal, State, or local law. Proposed
Sec. 106.44(k)(1) would also state that a recipient that provides an
informal resolution process must, to the extent necessary, also require
its Title IX Coordinator to take other appropriate prompt and effective
steps to ensure that sex discrimination does not continue or recur
within the recipient's education program or activity.
[[Page 41454]]
The Department proposes clarifying that a recipient would have
discretion regarding whether to offer an informal resolution process at
any time prior to determining under proposed Sec. 106.45, and if
applicable proposed Sec. 106.46, whether sex discrimination occurred,
which is a point not explicitly addressed in the current regulations.
The Department also proposes, at Sec. 106.44(k)(1)(i) and (ii), making
clear that this discretion would include the recipient's authority to
determine whether informal resolution is appropriate and to decline to
offer informal resolution regardless of one or more of the parties'
wishes, including, for example, if the recipient determines that the
alleged conduct would present a future risk of harm to others. Proposed
Sec. 106.44(k)(1)(i) would also make clear that a recipient may offer
informal resolution without first requiring that a complaint be made;
rather, a recipient has discretion to determine whether it is
appropriate to offer an informal resolution process when it receives
information about conduct that may constitute sex discrimination under
Title IX, or a complaint of sex discrimination is made.
The Department also proposes clarifying that a recipient must not
require or pressure the parties to participate in an informal
resolution process instead of the recipient's grievance procedures.
Proposed Sec. 106.44(k)(2) would preserve the current requirement that
the recipient must obtain the parties' voluntary consent to the
informal resolution process and must not require waiver of the right to
an investigation and adjudication of a complaint as a condition of
enrollment or continuing enrollment, or employment or continuing
employment, or exercise of any other right.
The Department proposes keeping the same elements currently
required for written notice of the informal resolution process and
would add requirements that provide the parties with more detailed
information about what an informal resolution process would entail.
This would include, in proposed Sec. 106.44(k)(3), the types of
potential terms that the parties might voluntarily agree to as a part
of an informal resolution process, including, among others,
restrictions on contact. In addition, proposed Sec. 106.44(k)(3) would
require a recipient to communicate that and other specified information
to the parties before initiating an informal resolution process. A
recipient would be required to communicate this information in writing
only when offering informal resolution of sex-based harassment
complaints involving a postsecondary student complainant or respondent
in proposed Sec. 106.46(j).
Reasons: Clarification of discretion. The Department proposes
clarifying in Sec. 106.44(k) that a recipient would have discretion to
determine whether it is appropriate to offer an informal resolution
process when it receives information about conduct that may constitute
sex discrimination under Title IX or a complaint of sex discrimination
is made. The proposed regulations would not require a recipient to
provide an informal resolution process and would not specify the types
of informal resolution processes that a recipient may offer to its
students, employees, or third parties, in part because appropriate
options might vary depending on the factual circumstances. In the
elementary school setting, for example, options might include requiring
the respondent to take steps to repair the relationship with the
complainant without requiring the students to interact face-to-face,
such as through writing or drawing an apology. In the postsecondary
setting, an informal resolution process could involve mediation or a
more complex restorative justice process. As the Department recognized
in the preamble to the 2020 amendments, such an informal resolution
process could provide ``greater flexibility to recipients in serving
their educational communities.'' 85 FR 30403. An informal resolution
process is not a fact-finding, investigative process as specified in
the grievance procedures under proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, and does not involve a determination of whether
sex discrimination occurred. Instead, it is an alternative avenue
through which parties may reach a resolution. The Department's
tentative view is that a recipient is in the best position to determine
whether an informal resolution process would be a potential good fit
depending upon the facts and circumstances, except that a recipient
must not offer an informal resolution process to resolve allegations
that an employee engaged in sex-based harassment toward a student. In
that circumstance, the Department is concerned that it is too difficult
to ensure that mediation or other forms of informal resolution would be
truly voluntary on the part of a student who reports sex-based
harassment by a recipient's employee due to the power differential and
potential for undue influence or pressure exerted by an employee over a
student.
Proposed Sec. 106.44(k)(1)(i) and (ii) also would make clear that
a recipient would have the discretion to determine that informal
resolution is not appropriate and decline to offer it regardless of one
or more of the parties' wishes. This would clarify that a recipient has
discretion to consider the context and circumstances when it receives
information about conduct that may constitute sex discrimination under
Title IX or a complaint of sex discrimination is made in deciding
whether to offer an informal resolution option. The Department would
like to ensure that recipients are aware of their flexibility regarding
informal resolution, for example, in circumstances in which a recipient
determines that the alleged conduct would present a future risk of harm
to others and an informal resolution process would be inappropriate.
This would allow a recipient to tailor its response to the needs of the
parties, subject to the overall guardrails provided by the regulations.
The Department also notes that, consistent with proposed Sec.
106.44(f)(1), a recipient must exercise this discretion in a manner
that is equitable to the parties and within its Title IX process as a
whole; it may not act arbitrarily or otherwise impermissibly in
offering or declining to offer an informal resolution process. A
recipient's discretion would be further limited by proposed Sec.
106.44(k)(2) which states a recipient must not require or pressure the
parties to participate in an informal resolution process, and that the
recipient must obtain the parties' voluntary consent to the informal
resolution process.
Take other appropriate prompt and effective steps to ensure that
sex discrimination does not continue or recur within the recipient's
education program or activity. Even if the parties reach an informal
resolution, sex discrimination, including sex-based harassment, in the
recipient's education program or activity may impact individuals beyond
the parties. In such cases, proposed Sec. 106.44(k)(1) would require a
recipient's Title IX Coordinator, to the extent necessary, to take
other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity. To ensure equal access to its education
program or activity for those persons, a recipient may need to provide
additional training for staff on how to respond appropriately to sex
discrimination, monitor known risks of sex discrimination in programs
and activities in which sex discrimination has been reported in the
past, or pursue
[[Page 41455]]
strategies other than discipline to address the conduct. For example, a
recipient may need to take steps to repair an educational environment
in which sex-based harassment occurred, such as within a specific
class, department, athletic team, or program. A recipient may also
consider providing educational programming aimed at the prevention of
sex-based harassment.
Deletion of requirement to file a formal complaint to invoke
informal resolution. As the proposed regulations would no longer
require a party to file a formal complaint, the Department proposes
removing the requirement in current Sec. 106.45(b)(9) that a recipient
must not offer informal resolution unless a formal complaint has been
filed. Under proposed Sec. 106.44(k), a recipient would have
discretion as to whether to offer an informal resolution process
without requiring the complainant to make a complaint requesting that
the recipient initiate its grievance procedures. Circumscribing a
recipient's ability to offer this process as an alternative to the
recipient's grievance procedures would undermine the Department's goal
of ensuring that, to the extent appropriate, a recipient can provide
students and others with a range of effective options that are
meaningful in their educational environments for addressing and
resolving allegations of sex discrimination consistent with Title IX.
The Department's reasons for the proposed removal of the formal
complaint requirement are addressed in greater detail in the discussion
of the proposed definition of ``complaint'' (Sec. 106.2).
Provide notice and ensure that the facilitator for the informal
resolution process is not the same as the investigator or decisionmaker
for grievance procedures involving the same information reported or
complaint. Proposed Sec. 106.44(k)(3) would clarify that as part of
the informal resolution process, the recipient would be required to
provide the parties with notice on a variety of points related to the
informal resolution process. Proposed Sec. 106.44(k)(3) would maintain
all of the notice requirements of current Sec. 106.45(b)(9)(i) and add
requirements to ensure that parties would receive information that is
important to understanding the process. Specifically, the Department
proposes that a recipient must explain the allegations; requirements of
the informal resolution process; the right to withdraw at any time and
initiate or resume the recipient's grievance procedures; that agreement
to a resolution would preclude initiating or resuming grievance
procedures arising from the same allegations; a description of the
potential terms that may be requested or offered in an informal
resolution agreement; which records will be maintained or could be
shared; a statement that if the recipient initiates or resumes its
grievance procedures, the recipient or a party must not access,
consider, disclose, or otherwise use information, including records,
obtained solely through an informal resolution process as part of the
investigation or determination of outcome of the complaint; and a
statement that an informal resolution facilitator could serve as a
witness \6\ for purposes other than providing information obtained
solely through the informal resolution process.
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\6\ This provision includes an additional requirement that would
codify an expectation from the preamble to the 2020 amendments
regarding facilitators potentially serving as witnesses in a process
under current Sec. 106.45. Following comments received to the 2018
NPRM, the preamble to the 2020 amendments stated, ``[w]ith respect
to informal resolution facilitators potentially serving as witnesses
in subsequent formal grievance processes, we leave this possibility
open to recipients. If recipients were to accept such witnesses,
then the Department would expect this possibility to be clearly
disclosed to the parties as part of the Sec. 106.45(b)(9)(i)
requirement in the final regulations to provide a written notice
disclosing any consequences resulting from participating in the
informal resolution process, including the records that will be
maintained or could be shared.'' 85 FR 30400-01. The proposed
regulations would clarify the situations in which an informal
resolution facilitator can serve as a witness.
---------------------------------------------------------------------------
Proposed Sec. 106.44(k)(3)(ii) would require a recipient to
explain the requirements of the informal resolution process it chooses
to offer to the parties. This explanation could include a discussion
about to what extent, if any, the proceedings will be kept
confidential. Informal or alternative dispute resolution processes
often are confidential to ensure that the parties engage fully and
candidly in the process. A recipient, if it chooses, should inform the
parties if the informal resolution process would be confidential, and
how the recipient would respond to any admissions made by a party. For
example, the recipient could inform the parties that if someone makes
an admission of criminal activity, that information could be forwarded
to relevant law enforcement authorities. Similarly, the recipient could
specify that it would keep confidential any record obtained solely
through the informal resolution process, as stated in proposed Sec.
106.44(k)(3)(vii), unless such disclosure is required by law, for
example under a subpoena.
A recipient might also clarify the consequences that would follow
upon learning of any fraud by a party to an informal resolution
agreement. For example, if a recipient learns that a party to an
informal resolution agreement made a material misstatement of a fact,
or made fraudulent representations, that another party relied upon in
reaching the agreement, then the recipient could decide to void the
agreement and resume the grievance procedure or pursue other actions
against that defrauding party. Finally, proposed Sec.
106.44(k)(3)(iii) would make explicit that the parties have the right
to withdraw from the informal resolution process prior to agreeing to a
resolution and that any party could initiate or resume the recipient's
grievance procedures. These additional requirements provide important
information to the parties so that they have a complete understanding
of all aspects of the informal resolution process. The Department notes
that informal resolution of a complaint under Title IX would not
necessarily resolve a recipient's obligations under other Federal law
(e.g., Title VII), State law, or other applicable rules or policies.
In addition, proposed Sec. 106.44(k)(4) would require that the
facilitator of the informal resolution process not be the same person
as the investigator or decisionmaker in the recipient's grievance
procedures. The Department proposes adding this provision to further
protect against any improper access, consideration, disclosure, or
other use of information obtained solely through the informal
resolution process, or conflict of interest, in the event a party
terminates informal resolution and the complaint proceeds to grievance
procedures under proposed Sec. 106.45, and if applicable proposed
Sec. 106.46.
Potential terms that may be requested or offered in an informal
resolution agreement. The Department also proposes adding Sec.
106.44(k)(5), which would provide examples of potential terms that may
be requested or offered in an informal resolution process and included
in an agreement. Consistent with the other changes discussed above, the
Department's current view is that this added specificity would provide
recipients with needed guidance about the contours of an informal
resolution process. The proposed regulations would emphasize the
voluntary nature of entering into an agreement as part of an informal
resolution process and would also preserve a recipient's discretion and
flexibility to allow for these terms. Finally, proposed Sec.
106.44(k)(5)(ii) would incorporate language from the preamble to the
2020 amendments contemplating that an
[[Page 41456]]
informal resolution agreement can include measures that would be
considered remedies or disciplinary sanctions had the recipient
determined that sex discrimination occurred under the recipient's
grievance procedures. See 85 FR 30401 (``Informal resolutions may reach
agreements between the parties, facilitated by the recipient, that
include [measures similar to supportive measures] but that also could
include disciplinary measures, while providing finality for both
parties in terms of resolving allegations raised in a formal complaint
of sexual harassment.'').
F. Framework for Grievance Procedures for Complaints of Sex
Discrimination
1. Title IX Grievance Procedures
Grievance procedures are a critical component of effective
enforcement of Title IX's prohibition on sex discrimination because
they ensure that a recipient has a process in place for investigating
and resolving complaints of sex discrimination. For this reason, since
1975, the Title IX regulations have required a recipient to adopt and
publish grievance procedures that provide for the prompt and equitable
resolution of complaints of sex discrimination. See 34 CFR 106.8(c).
OCR has addressed how individual recipients effectively implement their
Title IX grievance procedures through decades of enforcement
activities. See U.S. Dep't of Educ., Office for Civil Rights, Case
Resolutions Regarding Sex Discrimination, https://www2.ed.gov/about/offices/list/ocr/frontpage/caseresolutions/sex-cr.html. In addition,
OCR has provided subregulatory guidance on its interpretation of the
regulatory requirement. See, e.g., 2014 Q&A on Sexual Violence at 12-14
(describing appropriate elements of grievance procedures that provide
for the prompt and equitable resolution of complaints).
OCR's interpretation of the requirement to provide prompt and
equitable grievance procedures has always been informed by the due
process rights of the persons involved in a public recipient's
grievance procedures. Although it does not enforce the Due Process
Clause, ``[t]he Department, as an agency of the Federal government, is
subject to the U.S. Constitution, including the Fifth Amendment, and
will not interpret Title IX to compel a recipient, whether public or
private, to deprive a person of due process rights.'' 85 FR 30051,
n.226 (citing 2001 Revised Sexual Harassment Guidance at 22). And
although the Due Process Clause does not apply to private recipients,
the Department's proposed regulations, consistent with the 2020
amendments, require all recipients to adopt grievance procedures that
provide for the fair resolution of complaints of sex discrimination.
Id. at 30047 (adopting ``procedures that ensure that Title IX is
enforced consistent with both constitutional due process, and
fundamental fairness, so that whether a student attends a public or
private institution, the student has the benefit of a consistent,
transparent grievance process with strong procedural protections
regardless of whether the student is a complainant or respondent'').
The Supreme Court and other Federal courts have recognized that
procedural due process requirements depend on the circumstances of each
particular case. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
(``[D]ue process is flexible and calls for such procedural protections
as the particular situation demands.''); Gorman v. Univ. of R.I., 837
F.2d 7, 12 (1st Cir. 1988) (``Due process, which may be said to mean
fair procedure, is not a fixed or rigid concept, but, rather, is a
flexible standard which varies depending upon the nature of the
interest affected, and the circumstances of the deprivation.''). As a
flexible standard, what due process requires will vary based on several
factors, including the type of institution involved and the nature of
the potential sanction at issue. The Supreme Court has stated that in
the context of public elementary schools and secondary schools,
procedural due process requires, at a minimum, notice and a meaningful
opportunity to be heard. Goss v. Lopez, 419 U.S. 565, 579 (1975) (``At
the very minimum, therefore, students facing suspension and the
consequent interference with a protected property interest must be
given some kind of notice and afforded some kind of hearing.''). In
Goss, the Court observed that the Due Process Clause may require
additional procedures for more severe sanctions. Id. at 584 (``Longer
suspensions or expulsions for the remainder of the school term, or
permanently, may require more formal procedures.''). In the context of
an elementary school or secondary school student ``facing temporary
suspension,'' Goss noted that due process entitles the student to
``oral or written notice of the charges against him and, if he denies
them, an explanation of the evidence the authorities have and an
opportunity to present his side of the story.'' Id. at 581. The Supreme
Court emphasized that ``[t]here need be no delay between the time
`notice' is given and the time of the hearing,'' noting that ``[i]n the
great majority of cases the disciplinarian may informally discuss the
alleged misconduct with the student minutes after it has occurred.''
Id. at 582.
Federal appellate courts have generally determined that a public
postsecondary institution's disciplinary proceedings are subject to
procedural due process requirements. See, e.g., Doe v. Miami Univ., 882
F.3d 579, 600 (6th Cir. 2018) (``When a student faces the possibility
of suspension, we have held that the minimum process a university must
provide is notice of the charges, an explanation of the evidence
against the student, and an opportunity to present his side of the
story before an unbiased decision maker.'') (citations omitted); Doe v.
Cummins, 662 F. App'x 437, 442, 445, 451 (6th Cir. 2016) (determining
that procedural due process applies to disciplinary action against a
student even when the student was placed on disciplinary probation and
required to write extra papers, but was not suspended); Gorman, 837
F.2d at 12 (holding that a student facing expulsion or suspension from
a public educational institution is entitled to the protections of the
Due Process Clause); Rosenfeld v. Ketter, 820 F.2d 38, 40 (2d Cir.
1987) (holding that sufficient due process was provided to a university
student facing suspension when the student was given the opportunity
``to characterize his conduct, put it in the proper context and urge
that University rules not be enforced against him'' and stating that a
formal hearing was not required); Dixon v. Ala. State Bd. of Educ., 294
F.2d 150, 151 (5th Cir. 1961) (holding that procedural due process
requires some form of notice and hearing before public college students
may be expelled for misconduct and noting that the nature of the
hearing may vary depending on the particular circumstances of the
case); Janati v. Univ. of Nev. Las Vegas Sch. of Dental Med., No. 2:15-
cv-01367-APG-CWH, 2017 WL 1181571, at *4 (D. Nev. Mar. 29, 2017),
aff'd, 738 F. App'x 438 (9th Cir. 2018) (holding that ``[u]niversity
students likely have some procedural due process rights in academic
disciplinary proceedings,'' and explaining that the required process in
the educational context includes the minimums of some kind of notice
and some kind of hearing, but not a full judicial hearing). Courts have
also made clear, however, that school disciplinary proceedings are not
civil or criminal trials and, as such, the parties are not entitled to
the same rights as parties in a civil trial or defendants in a criminal
trial. See, e.g., Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S.
78, 88
[[Page 41457]]
(1978) (``A school is an academic institution, not a courtroom or
administrative hearing room.''); Doe v. Univ. of Ky., 860 F.3d 365, 370
(6th Cir. 2017) (citing Cummins, 662 F. App'x at 446) (holding that
``school disciplinary proceedings, while requiring some level of due
process, need not reach the same level of protection that would be
present in a criminal prosecution''); Nash v. Auburn Univ., 812 F.2d
655, 664 (11th Cir. 1987) (``Due process requires that appellants have
the right to respond, but their rights in the academic disciplinary
process are not co-extensive with the rights of litigants in a civil
trial or with those of defendants in a criminal trial.'').
a. The 2020 Amendments
The Department explained in the preamble to the 2020 amendments
that although the Supreme Court has held that sexual harassment is a
form of sex discrimination under Title IX and set out the circumstances
under which a recipient may be liable for monetary damages when a
student or employee sexually harasses a student, ``the Supreme Court's
Title IX cases have not specified conditions under which a recipient
must initiate disciplinary proceedings against a person accused of
sexual harassment, or what procedures must apply in any such
disciplinary proceedings.'' 85 FR 30046. More specifically, the
Department recognized that ``the Supreme Court has not ruled on what
constitutional due process looks like in the `particular situation' of
Title IX sexual harassment adjudications . . . '' Id. at 30051
(footnote omitted). As a result, ``Federal appellate courts have taken
different approaches to which specific procedures are constitutionally
required under the general proposition that due process in the
educational discipline context requires some kind of notice and some
kind of opportunity to be heard, and for private institutions not
subject to constitutional requirements, which specific procedures are
required to comport with fundamental fairness.'' Id.
The Department nonetheless articulated in the 2020 amendments its
understanding of the significant role due process principles play in
shaping fair grievance procedures and affirmed that its understanding
was consistent with OCR's prior guidance that ``the rights established
under Title IX must be interpreted consistent with any federally
guaranteed due process rights involved in a complaint proceeding'' and
``[p]rocedures that ensure the Title IX rights of the complainant,
while at the same time according due process to both parties involved,
will lead to sound and supportable decisions.'' Id. at 30047 n.192
(citing 2001 Revised Sexual Harassment Guidance at 22). Although the
Department explained in the preamble to the 2020 amendments that
``[t]he grievance process [for formal complaints of sexual harassment]
prescribed in the final regulations [in Sec. 106.45] is important for
effective enforcement of Title IX and is consistent with constitutional
due process and conceptions of fundamental fairness,'' it also
recognized that ``constitutional due process does not require the
specific procedures included in the Sec. 106.45 grievance process [for
formal complaints of sexual harassment].'' Id. at 30053. The Department
further explained that ``each of the procedural requirements in Sec.
106.45 is prescribed because the Department views the requirement as
important to ensuring a fair process for both parties rooted in the
fundamental due process principles of notice and meaningful
opportunities to be heard.'' Id.
In adopting very specific requirements for grievance procedures for
formal complaints of sexual harassment, the Department explained that
it had ``determined that the current regulatory reference to `grievance
procedures' that are `prompt and equitable' does not adequately
prescribe a consistent, fair, reliable grievance process for resolving
allegations of Title IX sexual harassment.'' Id. at 30240. The
Department stressed that it adopted these additional requirements for
sexual harassment complaints to help recipients ``respond meaningfully
to allegations of sexual harassment (including sexual assault) on
campuses, while also providing due process protections for both
parties.'' Id. at 30048. It explained that ``[t]he Sec. 106.45
grievance process is designed for the particular `practical matters'
presented by allegations of sexual harassment in the educational
context.'' Id. at 30053 (footnote omitted). The Department also
asserted that the grievance procedure requirements it adopted for
complaints of sexual harassment ``build upon the foundation set forth
in the Department's guidance, yet provide the additional clarity and
instruction missing from the Department's guidance as to how recipients
must provide for the needs of complainants, with strong procedural
rights that ensure due process protections for both complainants and
respondents.'' Id. at 30049. The Department further stated ``[w]e
believe that the procedures in the Sec. 106.45 grievance process will
ensure that recipients apply a fair, truth-seeking process that
furthers the interests of complainants, respondents, and recipients in
accurately resolving sexual harassment allegations.'' Id.
b. Feedback From Stakeholders Regarding the Grievance Procedures in
Current Sec. 106.45
Having had some experience with the implementation of the 2020
amendments, stakeholders representing elementary school and secondary
school teachers, administrators, and professional staff, postsecondary
institution administrators and faculty, students and parents,
professional organizations, advocacy groups, and States Attorneys
General stressed to OCR, in listening sessions and through the June
2021 Title IX Public Hearing, that the Department should revise the
grievance procedures required under current Sec. 106.45 to account for
concerns and challenges that this implementation presented across these
settings. To avoid confusion, the preamble discussion refers to the
procedures set out in proposed Sec. Sec. 106.45 and 106.46 as
``grievance procedures,'' even though the preamble to the 2020
amendments generally refers to procedures required under current Sec.
106.45 as a ``grievance process.''
Elementary schools and secondary schools. OCR received significant
feedback from stakeholders related to the unique needs of elementary
schools and secondary schools as well as requests to reduce some of the
burdens the grievance procedures requirements imposed on these schools.
These stakeholders said the 2020 amendments related to grievance
procedures impeded instead of effectuated efforts to comply with Title
IX. Based on their experiences attempting to comply with the 2020
amendments, elementary school and secondary school stakeholders
overwhelmingly reported that the current regulations taken as a whole
are unworkable for elementary schools and secondary schools.
Administrators at elementary schools and secondary schools
described their struggle to implement the grievance procedures under
the current regulations and expressed the need for grievance procedures
that would allow for more flexibility. For example, stakeholders shared
that the grievance procedures should permit them to quickly separate
children in response to some incidents of sex-based harassment, such as
when administrators of elementary schools and secondary schools need to
be able to immediately address certain behavior on the playground.
Stakeholders also stressed the need for grievance procedures in
[[Page 41458]]
that setting that allow schools to address possible sex discrimination
early and proactively to promote student and campus safety. These
stakeholders urged the Department to exempt elementary schools and
secondary schools from the provisions in current Sec. 106.45 that
impose a lengthy timeline. These provisions include, for example,
requiring a recipient to provide written notice to the parties of
allegations potentially constituting sex-based harassment with
sufficient time to prepare a response before any initial interview;
providing written notice of the logistic details and purpose of all
meetings, including interviews and hearings, with sufficient time to
prepare to participate; and building in ten days for parties to respond
to a summary of the evidence obtained as part of the investigation
(current Sec. 106.45(b)(2)(i)(B), (b)(5)(v), and (b)(5)(vi)).
Stakeholders explained that these and other provisions prevent schools
from handling incidents when they arise and significantly delay their
ability to respond to sex-based harassment when it occurs.
OCR also received feedback from multiple stakeholders that a
process that may have taken days under an elementary school or
secondary school's previous grievance procedures now takes several
months under the 2020 amendments because of these and other time-
consuming requirements, including the need to create an investigative
report for the parties' review and written response at least ten days
prior to a hearing or other time of determination (current Sec.
106.45(b)(5)(vii)). Other stakeholders urged the Department to
establish different grievance procedures for elementary schools and
secondary schools than those required for postsecondary institutions,
noting their view that the 2020 amendments were clearly focused on
postsecondary institutions.
Postsecondary institutions. OCR also heard from postsecondary
institution stakeholders that the procedures in current Sec. 106.45
are overly prescriptive and burdensome in ways that impede their
response to sexual harassment, similar to concerns raised regarding
application of the procedures to elementary schools and secondary
schools. These stakeholders objected to the 2020 amendments as setting
out regulations that micromanaged disciplinary processes at
postsecondary institutions, significantly limiting their ability to
resolve sexual harassment allegations promptly and equitably through
grievance procedures that function effectively in their educational
environment. The Department also heard from stakeholders in 2022 in
meetings held under Executive Order 12866, after the NPRM was submitted
to OMB, that application of the grievance procedures as required by the
2020 amendments at some recipients extends the process for resolving
complaints, to the detriment of all parties. Stakeholders also objected
to certain provisions that they said, based on experience, had
discouraged reporting of sexual harassment. For example, as noted in
the discussion of proposed Sec. 106.46(f) and (g), some postsecondary
institutions described the live hearing and cross-examination
requirements as too prescriptive and burdensome to apply effectively.
They questioned the utility of live hearings, noting that much of the
information elicited during a hearing relates to questions that were
asked and answered during an investigation. Stakeholders reported to
OCR that they had observed a reduction in complaints filed and greater
reluctance to move forward with grievance procedures as a result of the
live hearing and cross-examination requirements in the 2020 amendments.
Employee-complainants and respondents. OCR also heard from a
variety of stakeholders about the negative effect of current Sec.
106.45 on a recipient's ability to handle complaints of sex-based
harassment involving employees. Some of these stakeholders expressed
general concern about the lack of clarity in the 2020 amendments on how
Title VII interacts with Title IX in instances of employee-on-employee
harassment allegations. Other stakeholders suggested that incidents of
sex-based harassment involving employees as a complainant or respondent
be removed in their entirety from the proposed Title IX regulations and
instead handled by a recipient under its existing Title VII procedures,
while still others suggested that the Title IX regulations that govern
employee respondents be revised so that they are less prescriptive than
the procedures required in current Sec. 106.45. A number of
stakeholders commented that applying the requirements in current Sec.
106.45 to sexual harassment complaints involving an employee respondent
is unworkable because they are overly and unnecessarily burdensome,
noting that those requirements were designed with students as the
primary focus. Some of these stakeholders expressed the view that some
aspects of current Sec. 106.45, specifically the live hearing with
cross-examination requirement, make it difficult for recipients to
address sexual harassment in situations where a complainant or witness
declines to submit to cross-examination. These stakeholders expressed
concern that in these situations, current Sec. 106.45 has negatively
impacted their handling of sexual harassment allegations involving
their employees. Some stakeholders also voiced concerns that because
the requirements of current Sec. 106.45 apply to sexual harassment
allegations involving all of a recipient's employees, including at-will
employees, recipients may not discipline at-will employees for sexual
misconduct in the same way that they can address other forms of
misconduct by such employees.
Third-party complainants and respondents. OCR also heard from
stakeholders that current Sec. 106.45 exceeds the appropriate bounds
of the procedural protections required to ensure fairness when applied
to third-party complainants and respondents. One stakeholder suggested
that a recipient should not be required to implement highly
prescriptive procedures prior to restricting campus access for a third-
party visitor who the recipient determined had engaged in sexual
harassment on campus. The stakeholder noted that it would be excessive
to require, for example, a hearing with cross-examination before
imposing such restrictions on a visitor.
Additional concerns. Finally, the current regulations include
detailed grievance procedure requirements only for complaints of sexual
harassment. OCR heard from stakeholders that they need guidance
regarding what provisions are necessary to ensure the prompt and
equitable resolution of complaints of sex discrimination other than
sex-based harassment. Stakeholders asserted that sexual harassment
should not be singled out, and asked the Department to adopt uniform
standards for grievance procedures that apply to all complaints of sex
discrimination.
2. The Department's Proposed Revisions to Title IX's Grievance
Procedure Requirements
a. Overall Considerations and Framework
The Department has preliminarily determined that certain grievance
procedure requirements are appropriate for, and necessary to
effectuate, Title IX's nondiscrimination mandate with respect to all
types of sex discrimination complaints at all types of recipients. In
addition, the Department has preliminarily determined that certain
additional procedural protections are appropriate for one particular
subset of
[[Page 41459]]
sex discrimination complaints--those concerning sex-based harassment
involving at least one student at a postsecondary institution. The
Department recognizes the concerns expressed by stakeholders that
current Sec. 106.45 may limit the ability of recipients across a wide
range of settings and serving a large variety of students to respond
promptly and effectively to sex-based harassment. The Department also
recognizes the importance of recipients having clarity about grievance
procedures necessary to ensure full implementation of Title IX. The
requirement that a recipient adopt grievance procedures dates back to
1975 and has remained constant in the Department's Title IX
regulations, including the 2020 amendments--it provides that a
recipient must adopt and publish grievance procedures that provide for
the prompt and equitable resolution of sex discrimination complaints.
34 CFR 106.8(c). The Department's proposed regulations take into
account both this longstanding requirement and the concerns expressed
about the 2020 amendments, and would provide for appropriate procedural
protections that account for the age, maturity, and level of
independence of students in various educational settings, the
particular contexts of employees and third parties, and the need to
ensure that recipients have grievance procedures that provide for
prompt and equitable resolution of sex discrimination complaints in
their respective settings.
Elementary schools and secondary schools. In light of the
stakeholder concerns described above, the Department proposes that
grievance procedures that apply to complaints of sex discrimination at
elementary schools and secondary schools must account for the younger
student population and unique context for students attending these
schools, which operate educational environments that are distinct from
those attended by postsecondary students. In addition to compulsory
attendance rules and the need for age-appropriate standards for
classroom behavior, certain adults (i.e., parents, guardians, or other
authorized legal representatives) have a legal right to be present and
provide assistance to their student in Title IX grievance procedures in
the elementary school and secondary school setting. This legal
authorization for an adult representative does not apply to most
students at postsecondary institutions. Elementary schools and
secondary schools also work with children for whom a lengthy process is
less effective at preventing the recurrence of sex discrimination.
Younger students are less likely to appreciate the causal connection
between prior behavior and any subsequent discipline imposed after
lengthy grievance procedures, possibly rendering the delayed discipline
less effective at deterring similar conduct in the future.
Postsecondary institutions. The Department recognizes that
postsecondary institutions operate education environments that are
distinct from elementary schools and secondary schools and serve a
student population who are older, more likely to be living apart from a
parent or guardian, and generally function with more independence from
parents or guardians. The Department also recognizes that parents or
guardians do not typically have legal authority to exercise rights on
behalf of a postsecondary student, by virtue of the student's age, in a
way that they, or another authorized legal representative, would have
for a student in elementary school or secondary school, under proposed
Sec. 106.6(g). Students at postsecondary institutions are therefore
required to self-advocate in grievance procedures related to alleged
sex-based harassment that involves their own conduct or experiences,
but also may have more need, especially postsecondary students who are
newly independent, for additional procedural protections and for
someone to assist them in an advisory capacity as set out in proposed
Sec. 106.46(c)(2)(ii) and (e)(2). Also, in contrast to employees, who
may have an employment relationship with the recipient of indeterminate
length and who have protection in relation to sex-based harassment
under Title VII as well as Title IX, students at postsecondary
institutions typically are enrolled for a relatively short, finite term
and do not have the protection of Title VII in their capacity as
students. Therefore, the Department tentatively recognizes the
additional procedural protections in proposed Sec. 106.46, as uniquely
accounting for the needs of postsecondary students in that setting.
Employee-complainants and employee respondents. With respect to sex
discrimination complaints involving a recipient's employees, the
Department tentatively recognizes the need for grievance procedures to
ensure that a recipient can respond to reports of employee-on-employee
sex-based harassment and other forms of sex discrimination involving
employees promptly and equitably as required by Title IX, and also
comply with its obligations under Title VII, using a framework that is
suited to these types of complaints. This includes complaints involving
temporary, part-time, full-time, at-will, unionized, tenured, and
student-employees, each category of whom may be entitled to unique
grievance procedures based on their respective employment designations.
The requirement that the recipient's grievance procedures must be
prompt and equitable means, in this context, that a recipient's
grievance procedures under Title IX must function well alongside the
procedures it uses to implement Title VII and, to the extent not
inconsistent, other laws and collective bargaining agreements that
govern the employment relationship for complaints of sex-based
harassment involving employees. The Department also recognizes that a
recipient is not necessarily required by Title VII to apply all of the
requirements in current or proposed Sec. 106.45 to sex-based
harassment complaints involving employees. Section 106.6(f), to which
the Department does not propose any changes, makes clear that the
requirements under the Title IX regulations do not alleviate a
recipient's obligations to its employees under Title VII. The
requirements for grievance procedures for complaints of sex
discrimination in proposed Sec. 106.45, and if applicable proposed
Sec. 106.46, are limited to Title IX and would not apply to any
actions a recipient would take as part of its Title VII obligations to
its employees. In addition, under the proposed regulations, a recipient
would retain the ability to place an employee on administrative leave
under proposed Sec. 106.44(i) during the pendency of grievance
procedures in proposed Sec. 106.45, and if applicable proposed Sec.
106.46.
Third-party complainants and respondents. The Department's
tentative view is that to effectuate Title IX's objective to operate
its education programs or activities free from sex discrimination, a
recipient's grievance procedures would need to afford appropriate
procedural protections to ensure the prompt and equitable resolution of
complaints, even when applied to third parties. But the grievance
procedures would not need to afford all the same procedural protections
that are afforded when a party is a student at a postsecondary
institution, in light of the different relationship the recipient has
to a third party. The Department expects that, unlike a student, a
third party may not have an ongoing connection to a recipient or any
party to a complaint of sex discrimination. In addition, a third
party's participation or attempted
[[Page 41460]]
participation in the recipient's education program or activity is
likely to be much more limited than that of a student or employee.
Therefore, the Department recognizes that these differences in the
third party's relationship to the recipient should inform the
requirements a recipient must meet when responding to information about
conduct by or involving a third party in its education program or
activity that may constitute sex discrimination under Title IX. The
Department views the requirements in proposed Sec. 106.45 as
accounting for these considerations.
The Department also proposes adding Sec. 106.45(a)(2)(iv) to
expressly state that third parties who are participating or attempting
to participate in the recipient's education program or activity may
make complaints of sex discrimination under proposed Sec. 106.45.
Other recipients. In addition to elementary schools, secondary
schools, and postsecondary institutions, Title IX applies to numerous
other recipients such as State education agencies, State vocational
rehabilitation agencies, public libraries, museums, and a range of
other entities that receive Federal financial assistance from the
Department. There is wide variation in the number and population of
students served, the number of employees, and the administrative
structure within these additional categories of recipients, yet all are
required to provide an education program or activity that is free from
sex discrimination. The Department views the requirements for grievance
procedures proposed under Sec. 106.45 as affording adequate
flexibility while providing the minimal requirements to ensure an
equitable grievance procedure with respect to all sex discrimination
complaints at these types of recipients.
All claims of sex discrimination. The Department also recognizes
that the grievance procedure requirements in current Sec. 106.45 do
not apply to all types of sex discrimination complaints, and instead
are limited to complaints of sexual harassment. As a result,
stakeholders representing a range of recipients, including elementary
schools and secondary schools, as well as postsecondary institutions
and professional associations, reported to OCR that after the 2020
amendments, they lacked guidance on what grievance procedures are
required for all other types of sex discrimination complaints, beyond
the basic requirement that their grievance procedures must be prompt
and equitable. See 34 CFR 106.8(c). OCR previously provided recipients
subregulatory guidance on the basic elements of prompt and equitable
grievance procedures; however, the Department rescinded that guidance
and did not replace it with regulations. As noted in the discussion of
stakeholders' concerns in Feedback from Stakeholders Regarding the
Grievance Procedures in Current Sec. 106.45 (Section II.F.1.b),
stakeholders requested the Department restore guidance on grievance
procedures for all forms of sex discrimination to ensure that
recipients know how to satisfy their obligations under Title IX and how
to address sex discrimination complaints other than sex-based
harassment complaints. The Department notes concerns identified through
OCR's enforcement experience that not all recipients apply prompt and
equitable grievance procedures to address sex discrimination complaints
at their schools outside the context of sex-based harassment. OCR also
has observed that some recipients make ad hoc decisions about
complaints of different treatment and retaliation under Title IX, often
without incorporating appropriate legal standards or involving the
recipient's Title IX Coordinator, and thereby not ensuring that
complainants and respondents are treated equitably. OCR has found in
some cases that allegations of different treatment in grading were
handled solely through application of a recipient's grading policies
and not analyzed as sex discrimination even when a complainant alleges
that the grade they received was the result of sex discrimination. This
failure to involve the Title IX Coordinator means that complainants
alleging sex-based grade disparities may be subjected to inconsistent
processes for resolution of their complaints, which may or may not
include the recipient's grievance procedures. It also may prevent the
Title IX Coordinator from identifying and addressing a pattern of
discrimination in the recipient's education program or activity. The
Department is also aware of situations through OCR's enforcement
efforts in which recipients did not apply grievance procedures that
comply with Title IX to investigate complaints of sex discrimination in
athletics, but rather applied general conduct codes promulgated by
specific sports teams. Such codes do not focus on sex discrimination,
do not provide for measures to preserve parties' access to the
recipient's education program or activity or to protect against
retaliation, and do not contain many of the requirements and safeguards
of the Title IX grievance procedures, with the result that such cases
were not promptly investigated and addressed.
Proposed framework. In light of these considerations, including
this feedback from stakeholders and OCR's enforcement experience, a
portion of which is described above, the Department reviewed the
requirements in current Sec. 106.45 to assess whether they are
necessary to provide the parties with prompt and equitable grievance
procedures that are designed to ensure a fair and reliable process. The
Department also considered the need to adopt a framework for the
grievance procedures that a recipient must follow when responding to
all complaints of sex discrimination in light of the recipient's
obligations under Title IX to operate its education program or activity
free from sex discrimination, not just sexual harassment.
The Department explained in the preamble to the 2020 amendments
that the nature of the protections needed ``in the `particular
situation' of elementary and secondary schools may differ from
protections necessitated by the `particular situation' of postsecondary
institutions.'' 85 FR 30052 (footnotes omitted). The Department
maintains this view, and also currently believes that the specific
procedures necessary to afford prompt and equitable grievance
procedures that are designed to ensure a fair and reliable process for
sex discrimination complaints will differ based on the nature of the
allegations (e.g., sex-based harassment or other forms of sex
discrimination, such as failure to provide equitable athletic
opportunities or pregnancy discrimination) and the unique
characteristics of the individuals involved (e.g., age, level of
independence, relationship to the recipient). The Department reaffirms
its commitment to promulgating regulations that provide clear
requirements for prompt and equitable grievance procedures that afford
a fair and reliable process consistent with principles of due process
and the rights of all involved. The Department's view is that clear
requirements for grievance procedures for all complaints of sex
discrimination, not only sexual harassment complaints, are needed to
provide recipients necessary clarity on how to afford an equitable
process to resolve all sex discrimination complaints.
The Department proposes a comprehensive framework for grievance
procedures that builds upon the grievance procedures required under the
2020 amendments, with certain modifications to address the concerns
noted above, including to make that framework easier to follow and
implement and to preserve discretion
[[Page 41461]]
for recipients to meet their Title IX obligations through procedures
that will be effective in their educational environment. Under the
Department's framework, proposed Sec. 106.45 contains specific
requirements for grievance procedures that would apply to all
complaints of sex discrimination at any recipient and a new proposed
Sec. 106.46 contains additional requirements that would apply only to
complaints of sex-based harassment involving a student complainant or
student respondent at a postsecondary institution. The provisions the
Department proposes limiting to grievance procedures required under
Sec. 106.46 include several requirements from current Sec. 106.45--
live hearings (which would be optional), equitable access to an
investigation report that summarizes the relevant and not otherwise
impermissible evidence in advance of a live hearing if a hearing is
provided, and cross-examination if a live hearing is conducted--that
stakeholders reported were unworkable and unhelpful for elementary
schools and secondary schools in light of the unique educational needs
of students in that setting. The requirements the Department proposes
under the new framework would seek to clarify basic elements that are
essential to a reliable and equitable process for resolving complaints
of sex discrimination. The benefit of specifying these elements is to
ensure that all recipients have information about what is necessary to
satisfy the regulations' longstanding requirement of ``prompt and
equitable grievance procedures.''
The proposed regulations at Sec. Sec. 106.44, 106.45, and 106.46
would clarify the obligations of a recipient to respond promptly and
effectively to information and complaints about sex discrimination in
its education program or activity in a way that ensures full
implementation of Title IX. The Department invites comments on whether
there are additional requirements that should be included in, or
removed from, the current and proposed regulations to assist recipients
in meeting their obligation under Title IX to provide an educational
environment free from discrimination based on sex. The Department also
seeks comment on whether and how any of the proposed grievance
procedures (or any proposed additions from commenters) should apply
differently to various subgroups of complainants or respondents, such
as students or employees, or students at varying educational levels.
b. Proposed Sec. 106.45
The Department's tentative view is that the provisions in proposed
Sec. 106.45 would establish the basic elements of a fair process, set
clear guideposts for prompt and equitable grievance procedures, and
ensure transparent and reliable outcomes for recipients, students,
employees, and others participating or attempting to participate in a
recipient's education program or activity. These grievance procedure
requirements would apply to all complaints of sex discrimination,
including sex-based harassment, at all recipients. The provisions in
proposed Sec. 106.45(b) include basic requirements that are
overarching and apply at all or multiple stages of a recipient's
grievance procedures. Some of these basic requirements are already
included, in whole or in part, in current Sec. 106.45, such as
equitable treatment of complainants and respondents and a duty to
ensure that any Title IX Coordinator, investigator, or decisionmaker
involved in a recipient's grievance procedures does not have a conflict
of interest or bias for or against an individual complainant or
respondent or against complainants or respondents generally. The
Department also proposes requiring grievance procedures for all sex
discrimination complaints to include provisions regarding notice to the
parties of allegations of sex discrimination (proposed Sec.
106.45(c)), reasonably prompt timeframes for the major stages of a
recipient's grievance procedures (proposed Sec. 106.45(b)(4)), rules
regarding what evidence is allowed in a recipient's grievance
procedures and how a decisionmaker must weigh and assess the evidence
(proposed Sec. 106.45(b)(6) and (7), (h)(1)), and provisions to ensure
an adequate, reliable, and impartial investigation of sex
discrimination complaints (proposed Sec. 106.45(f)). These provisions
build on the requirements of current Sec. 106.45, which the Department
explained included specific requirements to afford complainants and
respondents in complaints of sexual harassment ``clear, strong
procedural rights and protections that foster a fair process leading to
reliable outcomes,'' and to provide ``consistency, predictability, and
transparency as to a recipient's obligations.'' Id. at 30213; see also
id. at 30381 (``[T]he Department has included in the Sec. 106.45
grievance process those procedural protections the Department has
determined necessary to serve the critical interests of creating a
consistent, fair process promoting reliable outcomes.''). The
Department continues to believe that all parties and recipients require
clear guidance for grievance procedures that lead to fair and reliable
outcomes. The Department's current view is that the requirements in
proposed Sec. 106.45, which it adopted under the 2020 amendments to
afford fair and reliable outcomes in sexual harassment complaints under
current Sec. 106.45, and which it proposes modifying in these proposed
regulations, are also an effective means of ensuring that grievance
procedures for all types of sex discrimination complaints are equitable
and reliable for all parties.
Through its enforcement work, OCR has also recognized that
reasonably prompt timeframes and an adequate, reliable, impartial
investigation, among other requirements in proposed Sec. 106.45, are
essential to ensuring a prompt and equitable resolution for all sex
discrimination complaints, including sex-based harassment. Because
these requirements are fundamental to a fair process, the Department
anticipates that many schools already incorporate them in their
grievance procedures for sex discrimination complaints.
c. Proposed Sec. 106.46
The Department's current position is that the requirements in
proposed Sec. 106.46, which are incorporated from current Sec. 106.45
with modifications as explained in greater detail in the discussion of
individual sections in Sec. 106.46, would apply only to complaints of
sex-based harassment involving a student complainant or student
respondent at a postsecondary institution. These requirements afford
protections that are appropriate to the age, maturity, independence,
needs, and context of students at postsecondary institutions. The
Department limited some of the provisions in the 2020 amendments to
postsecondary institutions for similar reasons, noting that
``postsecondary institutions present a different situation than
elementary and secondary schools because, for instance, most students
in elementary and secondary schools tend to be under the age of
majority such that certain procedural rights generally cannot be
exercised effectively (even by a parent acting on behalf of a minor).''
Id. at 30052 (footnotes omitted). Further, due to their age and
independence from parents and guardians, postsecondary institutions
generally expect students to self-advocate as part of their educational
experience, including by participating independently of parents,
guardians, or other authorized representatives in disciplinary
proceedings. Consistent
[[Page 41462]]
with the 2020 amendments, the Department aims to adopt requirements for
grievance procedures that ``accomplish the objective of a consistent,
predictable Title IX grievance process while respecting the fact that
elementary and secondary schools differ from postsecondary
institutions.'' Id.
The Department also recognizes that postsecondary students are
often newly independent and still learning to self-advocate. To account
for this, proposed Sec. 106.46 would retain certain provisions from
current Sec. 106.45 that afford postsecondary students greater
protections. The Department's tentative view is that the additional
requirements in proposed Sec. 106.46 are necessary for students at
postsecondary institutions who would not be entitled to have a parent,
guardian, or other authorized legal representative present at meetings
or proceedings, unlike complainants and respondents in complaints of
sex-based harassment at elementary schools and secondary schools. The
Department further submits that any delay associated with implementing
the additional requirements of proposed Sec. 106.46 would not limit a
postsecondary student's ability to understand the consequences of their
behavior in the same manner as it could for elementary school and
secondary school students. Such delays may limit an elementary school
or secondary school's ability to prevent the recurrence of sex
discrimination consistent with Title IX, which is of particular concern
in the context of full-time, full-week school attendance requirements
in elementary school and secondary school settings.
The Department's current view is that the additional requirements
of proposed Sec. 106.46 are also not necessary for others, including
employees and third parties, who, as noted in the discussion of
concerns raised by stakeholders in Feedback from Stakeholders Regarding
the Grievance Procedures in Current Sec. 106.45 (Section II.F.1.b),
have different relationships with postsecondary institutions and in the
case of employees, may be afforded additional rights or protections
under Title VII or other laws, agreements, or commitments by the
recipient. Affording additional procedural requirements for
postsecondary students is also consistent with the Department's
understanding of due process as a `` `flexible' concept dictated by the
demands of a `particular situation,' '' which in the case of
postsecondary institutions addressing complaints of sex-based
harassment involving a student complainant or respondent ``may dictate
different procedures than what might be appropriate in other
situations.'' Id.
The Department also currently believes that the provisions in
proposed Sec. 106.46 for sex-based harassment complaints involving
students at the postsecondary level may not be necessary to ensure an
equitable process for other types of sex discrimination complaints at
the postsecondary level, and could have the unintended consequence of
impeding effective enforcement of Title IX for such complaints by
adding requirements that may unnecessarily delay a recipient's prompt
response to possible sex discrimination. At this time, the Department
views these additional provisions as necessary to address sex-based
harassment complaints, which allege conduct that is highly personal and
often of a different nature than other types of alleged sex
discrimination. Sex-based harassment complaints may require greater
participation by a complainant and respondent in grievance procedures
than other complaints of sex discrimination would require. In fact, not
all sex discrimination complaints will involve two parties in a
contested factual dispute where credibility determinations may play a
critical role. In many sex discrimination complaints, such as
complaints alleging unequal treatment of student athletes based on sex,
there will not be two parties whose conduct and credibility are closely
scrutinized. Instead, these cases, which are often highly contested,
require analysis of available data and information regarding the
specific factors that apply to equal opportunity in athletics.
Similarly, alleged different treatment in grading or in providing
opportunities to benefit from specific programs and activities, will
require a close analysis of grading rubrics, opportunities offered, and
other evidence, if any, of impermissible sex-based different treatment.
Yet sex-based harassment complaints subject to the provisions of
proposed Sec. 106.46 could, and often would involve a student
respondent who faces a potential disciplinary sanction as a consequence
of the grievance procedures. The Department submits that the risk of
disciplinary sanction of a student respondent necessitates affording
additional procedural protections to ensure an equitable outcome. These
additional provisions would not be necessary for other complaints of
sex discrimination that often would not involve a student respondent
facing similar consequences.
To account for all of these differences, under the Department's
proposed framework, a postsecondary institution responding to
complaints of sex-based harassment involving a student complainant or
student respondent would apply the provisions in proposed Sec. 106.46
in addition to the provisions under proposed Sec. 106.45. The
additional requirements in proposed Sec. 106.46 for complaints of sex-
based harassment would address the specialized needs of postsecondary
student complainants and postsecondary student respondents, and, when
applied together with the requirements in proposed Sec. 106.45, would
afford such students equitable grievance procedures tailored to their
circumstances. The Department also proposes several revisions to the
provisions from current Sec. 106.45 that are incorporated into
proposed Sec. 106.46 to address concerns raised by stakeholders; these
changes are explained in greater detail in the discussion of individual
sections in proposed Sec. 106.46.
The Department includes the following additional procedural
protections for sex-based harassment complaints involving at least one
student at a postsecondary institution in proposed Sec. 106.46:
Provisions governing student employees (proposed Sec.
106.46(b));
Written notice requirements, including written notice of
the allegations as well as written notice of information related to the
parties' specific rights under the recipient's grievance procedures
(proposed Sec. 106.46(c));
Additional requirements for complaint dismissal (proposed
Sec. 106.46(d)) and investigation (proposed Sec. 106.46(e)) such as
the right to an advisor during the investigation (proposed Sec.
106.46(e)(2)), discretion to allow expert witnesses (proposed Sec.
106.46(e)(4)), and equitable access to relevant and not otherwise
impermissible evidence (proposed Sec. 106.46(e)(6));
A process for evaluating allegations and assessing
credibility, including a process for evaluating and limiting questions
during any hearing (proposed Sec. 106.46(f));
The option to provide for a live hearing (proposed Sec.
106.46(g)); and
Written notice related to the parties' rights and
responsibilities in a recipient's informal resolution process under
proposed Sec. 106.44(k), if one is offered (proposed Sec. 106.46(j)).
Several of the provisions proposed in Sec. 106.46 preserve the
requirement that a postsecondary institution provide specified
information to the parties in writing. These provisions would require
[[Page 41463]]
a postsecondary institution in complaints of sex-based harassment
involving a student complainant or student respondent to provide
written notice of the allegations and information about the recipient's
grievance procedures (proposed Sec. 106.46(c)); obtain the
complainant's voluntary withdrawal of a complaint in writing before
dismissing a complaint per the complainant's request and provide the
parties written notice of a dismissal and the basis for the dismissal
(proposed Sec. 106.46(d)); provide written notice explaining any delay
in the timeframe to investigate the complaint (proposed Sec.
106.46(e)(5)); provide a written determination of whether sex-based
harassment occurred (proposed Sec. 106.46(h)); and comply with the
requirements for appeals in writing (proposed Sec. 106.46(i)(3)). It
is the Department's current view that preserving the requirement that a
postsecondary institution comply with these provisions in writing is
appropriate in light of the particular circumstances of postsecondary
students, and will support postsecondary institutions' fulfillment of
their obligation under Title IX to provide an education program or
activity free from sex discrimination.
The Department notes that, as set out in proposed Sec. 106.45(i),
the proposed framework for all grievance procedures under proposed
Sec. 106.45 would allow a recipient to incorporate any of the
additional provisions required in grievance procedures under proposed
Sec. 106.46 to grievance procedures under proposed Sec. 106.45,
provided they apply equally to the parties.
G. Grievance Procedures for the Prompt and Equitable Resolution of
Complaints of Sex Discrimination
Section 106.45 Grievance Procedures for the Prompt and Equitable
Resolution of Complaints of Sex Discrimination
Current regulations: Section 106.45 addresses the required
grievance procedures for formal complaints of sexual harassment. The
specific requirements of current Sec. 106.45 are explained in greater
detail in the discussion of each subsection.
Current Sec. 106.8(c) requires a recipient to adopt and publish
grievance procedures that provide for the prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by the regulations and a grievance process that
complies with current Sec. 106.45 for ``formal complaints'' as defined
in current Sec. 106.30. The current regulations do not include
specific requirements for grievance procedures for complaints of sex
discrimination other than formal complaints of sexual harassment.
Proposed regulations: As explained in the discussion of the
Framework for Grievance Procedures for Complaints of Sex Discrimination
(Section II.F), proposed Sec. 106.45 contains specific requirements
for grievance procedures that would apply to all complaints of sex
discrimination at any recipient and a new proposed Sec. 106.46
contains additional requirements that would apply only to complaints of
sex-based harassment involving a student complainant or student
respondent at a postsecondary institution.
Proposed Sec. 106.45(a)(1) would clarify that for complaints of
sex discrimination, a recipient must have prompt and equitable
grievance procedures in writing, with provisions that incorporate the
requirements of proposed Sec. 106.45. Proposed Sec. 106.45(a)(2)
would set out who can make a complaint of sex discrimination requesting
that the recipient initiate its grievance procedures. Proposed Sec.
106.45(b) would provide a number of basic requirements that a
recipient's grievance procedures for complaints of sex discrimination
under proposed Sec. 106.45 would have to include. In addition to the
basic requirements, proposed Sec. 106.45 would also include the
following provisions: notice of allegations (proposed Sec. 106.45(c));
dismissal of a complaint (proposed Sec. 106.45(d)); consolidation of
complaints (proposed Sec. 106.45(e)); complaint investigation
(proposed Sec. 106.45(f)); evaluating allegations and assessing
credibility (proposed Sec. 106.45(g)); and determination of whether
sex discrimination occurred (proposed Sec. 106.45(h)). Proposed Sec.
106.45(i) would also permit a recipient to adopt additional provisions,
as long as they apply equally to the parties, and proposed Sec.
106.45(j) would permit a recipient to resolve a complaint through its
informal resolution process. Finally, proposed Sec. 106.45(k) would
provide that, for complaints alleging sex-based harassment, the
grievance procedures must describe the range of supportive measure
available and describe (or list) the possible disciplinary sanctions
and remedies.
Additional detailed explanation of the requirements of proposed
Sec. 106.45 is provided in the discussion of each subsection,
including proposed changes from current Sec. 106.45.
Section 106.45(a) Discrimination on the basis of sex
Current regulations: Section 106.45(a) states that a recipient's
treatment of a complainant or a respondent in response to a formal
complaint of sexual harassment may constitute discrimination on the
basis of sex under Title IX.
Proposed regulations: The Department proposes removing this
provision from the regulations in its entirety.
Reasons: After reevaluating this issue, the Department proposes
removing current Sec. 106.45(a) as redundant because current Sec.
106.31(a) and (b)(4) already prohibit different treatment based on sex,
making this section unnecessary. In addition, it is appropriate to
remove this provision because formal complaints would no longer be
required under the proposed regulations.
The Department explained in the preamble to the 2020 amendments
that current Sec. 106.45(a) merely declares that actions toward a
complainant or respondent may constitute sex discrimination. 85 FR
30238-39. The Department also stated that this provision emphasizes
that a recipient must not treat a party differently on the basis of sex
and that the Department disagreed that the provision creates a new
protected class of respondents because it provides protections from sex
discrimination to all persons. Id.
After considering the issue and reweighing the facts and
circumstances, the Department's tentative view is that Sec. 106.31(a),
both in its current form and with the revisions included in the
proposed regulations, and current Sec. 106.31(b)(4) are adequate to
address the concerns that current Sec. 106.45(a) was drafted to
address. In particular, current Sec. 106.31(a) and proposed Sec.
106.31(a)(1) prohibit sex ``discrimination under any academic,
extracurricular, research, occupational training, or other education
program or activity operated by a recipient,'' 34 CFR 106.31(a), and
Sec. 106.31(b)(4) prohibits a recipient from ``subject[ing] any person
to separate or different rules of behavior, sanctions, or other
treatment'' on the basis of sex. Id. at 106.31(b)(4). The Department
interprets these provisions to require a recipient to carry out its
grievance procedures to address complaints of sex discrimination,
including sex-based harassment, in a nondiscriminatory manner and to
prohibit a recipient from treating any party differently based on sex.
The Department maintains its view that discrimination based on sex
against a party in the context of a grievance procedure would violate
Title IX.
[[Page 41464]]
Section 106.45(a)(1) General
Current regulations: Section 106.45(b) states that for the purpose
of addressing formal complaints of sexual harassment, a recipient's
grievance process must comply with the requirements of this section.
The current regulations do not contain a provision stating whether a
recipient should be considered a respondent when the complaint alleges
that the recipient's policy or practice discriminates based on sex.
Proposed regulations: Proposed Sec. 106.45(a)(1) would clarify
that for purposes of addressing complaints of sex discrimination, a
recipient's prompt and equitable grievance procedures must be in
writing and must include provisions that incorporate the requirements
of proposed Sec. 106.45. It would further clarify that the
requirements in proposed Sec. 106.45 related to a respondent apply
only to sex discrimination complaints alleging that a person violated
the recipient's prohibition on sex discrimination and explain that when
a sex discrimination complaint alleges that a recipient's policy or
practice discriminates based on sex, the recipient is not considered a
respondent. For additional requirements regarding the application of
this provision in grievance procedures for sex-based harassment
complaints involving postsecondary students, see the discussion of
proposed Sec. 106.46(a).
Reasons: Proposed Sec. 106.45(a)(1) would maintain the general
principle from current Sec. 106.45(b) that a recipient must comply
with the requirements in the grievance procedures for complaints but
would broaden the provision to apply to complaints of all forms of sex
discrimination, not just sexual harassment, to conform with other
changes in the proposed regulations. The Department proposes removing
references to formal complaints of sexual harassment and applying
proposed Sec. 106.45(a)(1) to all complaints of sex discrimination to
account for other proposed changes to the regulations.
The Department recognizes that not all complaints of sex
discrimination involve active participation by a complainant and
respondent in the grievance procedures and therefore, some provisions
in proposed Sec. 106.45 would not be applicable for all complaints of
sex discrimination. This is true for complaints alleging that the
recipient's own policy or procedures discriminate based on sex (e.g.,
when a complaint alleges that the recipient's policies discriminate on
the basis of sex in the provision of extracurricular activities). For
example, the requirement to follow grievance procedures before imposing
disciplinary sanctions on a respondent (proposed Sec. 106.45(b)(11))
would not apply when the alleged sex discrimination involves a policy
or practice of the recipient but does not allege sex discrimination by
an individual student, employee, or third-party respondent. Similarly,
a recipient would not be afforded the right to appeal the dismissal of
a sex discrimination complaint against it (proposed Sec.
106.45(d)(3)), nor would an informal resolution process be available in
sex discrimination complaints that do not involve a student, employee,
or third-party respondent (proposed Sec. 106.45(j)). The Department's
current view is that because the provisions in proposed Sec. 106.45
related to a respondent would not apply to all complaints of sex
discrimination, it is necessary to include language clarifying this in
proposed Sec. 106.45(a)(1). Clarifying that a recipient is not a
respondent is also consistent with how the Department proposes defining
a ``respondent'' in proposed Sec. 106.2 as a person alleged to have
violated the recipient's prohibition on sex discrimination.
Section 106.45(a)(2) Complaint
Current regulations: The current regulations do not contain a
related provision but state in Sec. 106.44(b) that all recipients must
follow a grievance process that complies with Sec. 106.45 in response
to a formal complaint of sexual harassment. The current regulations
define a ``formal complaint'' in Sec. 106.30(a) as a document filed by
a complainant or signed by the Title IX Coordinator alleging sexual
harassment against a respondent and requesting that the recipient
investigate the allegation of sexual harassment. The current
regulations also state that at the time of filing a formal complaint, a
complainant must be participating in or attempting to participate in
the education program or activity of the recipient with which the
formal complaint is filed. In addition, the current regulations in
Sec. 106.8(c) require a recipient to adopt and publish grievance
procedures that provide for the prompt and equitable resolution of
student and employee complaints of sex discrimination.
Proposed regulations: The Department proposes adding Sec.
106.45(a)(2), which would state that the following persons have a right
to make a complaint of sex discrimination, including complaints of sex-
based harassment, requesting that the recipient initiate its grievance
procedures: (i) a complainant; (ii) a person who has a right to make a
complaint on behalf of a complainant under Sec. 106.6(g); or (iii) the
Title IX Coordinator. In addition, any student or employee, or any
third party participating or attempting to participate in the
recipient's education program or activity when the alleged sex
discrimination occurred would have a right to make a complaint of sex
discrimination other than sex-based harassment.
Reasons: Any person seeking to request that a recipient initiate
its grievance procedures under proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, must make a complaint of sex discrimination,
including sex-based harassment. In light of the unique circumstances of
sex-based harassment, the Department proposes different requirements
for who may make a complaint of sex-based harassment and who may make a
complaint of sex discrimination other than sex-based harassment.
Proposed Sec. 106.45(a)(2)(i) through (iii) would allow a
``complainant,'' defined in proposed Sec. 106.2 as a person alleged to
have been subjected to sex discrimination; anyone who has a right to
make a complaint on a complainant's behalf under proposed Sec.
106.6(g); or the Title IX Coordinator to make a complaint of sex
discrimination, including sex-based harassment. Under the proposed
definition of ``complainant'' in Sec. 106.2, a third-party complainant
who wants to make a complaint of sex discrimination, including sex-
based harassment, must be participating or attempting to participate in
the recipient's education program or activity when the alleged sex
discrimination occurred. For example, if a student enrolled in
University A is taking a class at University B through an agreement
between the universities and is subjected to sex-based harassment by a
student enrolled in University B while attending class at University B,
the student would be permitted to make a complaint of sex-based
harassment through University B's grievance procedures because the
student is a third party participating in University B's education
program or activity when the sex-based harassment occurred. Or, for
example, if a student who plays for School A's basketball team is
subjected to sex-based harassment by a student enrolled in School B
while at School B to play in a basketball game, the student would be
permitted to make a complaint of sex-based harassment through School
B's grievance procedures because the student is a third party
participating in School B's education program or activity when the sex-
based harassment
[[Page 41465]]
occurred. The Department notes that Student A could also choose to make
a complaint through School A's grievance procedures because the
basketball team is part of School A's education program or activity,
but School A would not necessarily have authority to require the
respondent student from School B to participate in School A's grievance
procedures or to impose disciplinary sanctions on the respondent from
School B.
Proposed Sec. 106.45(a)(2)(i) through (iii) would generally be
consistent with the requirements under the current regulations
regarding who can file a formal complaint of sexual harassment, with
some minor revisions consistent with other proposed changes to the
regulations. For additional information regarding these proposed
changes see the discussion of the proposed definitions of ``complaint''
and ``complainant'' (Sec. 106.2).
Proposed Sec. 106.45(a)(2)(i) through (iii) would allow a
complainant, a person who has a right to make a complaint on behalf of
a complainant under proposed Sec. 106.6(g), and the Title IX
Coordinator to make a complaint of sex-based harassment. Under proposed
Sec. 106.45(a)(2)(iv), however, the Department would limit the ability
of non-complainants, including other students and employees, and third
parties who are participating or attempting to participate in the
recipient's education program or activity to make complaints of sex-
based harassment, while allowing them to make complaints of sex
discrimination other than sex-based harassment. The Department proposes
this limitation because it recognizes that sex-based harassment
complaints may involve allegations about deeply personal aspects of the
complainant's life, and that a complainant should therefore have the
opportunity to choose whether or not to request that the recipient
initiate its grievance procedures, except in the limited circumstances
in which a Title IX Coordinator would be obligated to initiate the
recipient's grievance procedures if the complainant chose not to, as
explained in the discussion of proposed Sec. 106.44(f)(5). During the
June 2021 Title IX Public Hearing, commenters requested that the
Department provide flexibility to complainants to determine whether to
participate in the recipient's grievance procedures given these
considerations. The Department's proposed regulations recognize the
importance of complainant autonomy and also the requirement under Title
IX that a recipient operate an education program or activity free from
sex discrimination, including sex-based harassment. Therefore, although
the Department's proposal would limit who can make a complaint of sex-
based harassment to the individuals identified in proposed Sec.
106.45(a)(2)(i) through (iii), other individuals, including witnesses
to sex-based harassment, may inform the Title IX Coordinator of any
potential sex-based harassment. Upon receiving notification about
conduct that may constitute sex-based harassment from someone other
than the individuals identified in proposed Sec. 106.45(a)(2)(i)
through (iii), the recipient must require its Title IX Coordinator to
take steps consistent with proposed Sec. 106.44(f).
The Department recognizes that in some instances, particularly in
situations in which systemic sex discrimination is being alleged, the
person who may have information regarding the discrimination may not
themselves be subjected to the sex discrimination at issue. For
example, the boys' soccer coach may have information about disparities
between boys' and girls' athletic facilities, including locker rooms,
that the girls' soccer coach may not be able to access. Allowing the
boys' soccer coach to make a complaint of sex discrimination brings
this concern to the recipient's attention and serves the recipient's
and Department's interest in ensuring a nondiscriminatory educational
environment based on sex. The Department's proposed approach is
informed by its interest in allowing students and employees to make a
complaint about sex discrimination in the education program or activity
to the recipient and in permitting the recipient to focus its resources
on complaints made by persons who have a relationship with the
recipient. The Department thus proposes to allow only those third
parties who are participating or attempting to participate in a
recipient's education program or activity at the time of the alleged
discrimination to make a complaint. This proposed limitation on third
parties is generally consistent with the Department's reasoning in the
preamble to the 2020 amendments. 85 FR 30198 (explaining that the
requirement that the complainant must be participating or attempting to
participate in the recipient's education program or activity ``prevents
recipients from being legally obligated to investigate allegations made
by complainants who have no relationship with the recipient'').
Section 106.45(b) Basic Requirements for Grievance Procedures
Current regulations: Section 106.45(b) requires all recipients to
use a grievance process for formal complaints of sexual harassment that
complies with all of the requirements of Sec. 106.45. It also states
that any provisions, rules, or practices other than those required by
this section that a recipient adopts as part of its grievance process
for handling ``formal complaints'' of ``sexual harassment'' as defined
in current Sec. 106.30 must apply equally to both parties.
Proposed regulations: Proposed Sec. 106.45(b) contains the
introductory language to the basic requirements for the grievance
procedures. The seven provisions in proposed Sec. 106.45(b) would
include basic requirements that are overarching and apply at all or
multiple stages of a recipient's grievance procedures. As explained in
the individual discussions of proposed Sec. 106.45(b)(1) through (7),
some of these basic requirements are already included, in whole or in
part, in current Sec. 106.45. The Department also proposes moving the
language in current Sec. 106.45(b) regarding additional provisions of
a recipient's grievance procedures to proposed Sec. 106.45(i).
Reasons: The Department's proposed revisions are necessary to be
consistent with other proposed changes to the regulations.
Section 106.45(b)(1) Treat Complainants and Respondents Equitably
Current regulations: Section 106.45(b)(1)(i) requires a recipient
to treat complainants and respondents equitably by providing remedies
to a complainant when a determination of responsibility for sexual
harassment has been made against the respondent, and by following a
grievance process that complies with this section before the imposition
of any disciplinary sanctions or other actions that are not
``supportive measures'' as defined in current Sec. 106.30, against a
respondent. Remedies must be designed to restore or preserve a
complainant's or other person's access to the recipient's education
program or activity. Remedies may include the same individualized
services described in current Sec. 106.30 as supportive measures;
however, remedies need not be non-disciplinary or non-punitive and need
not avoid burdening the respondent.
Proposed regulations: The Department proposes maintaining the
requirement in the current regulations to treat complainants and
respondents equitably but moving it to proposed
[[Page 41466]]
Sec. 106.45(b)(1) and applying it to all complaints of sex
discrimination, not just formal complaints of sexual harassment. The
Department proposes moving the language regarding remedies for the
complainant to proposed Sec. 106.45(h)(3) and the language regarding
following grievance procedures that comply with this section before the
imposition of any disciplinary sanctions against a respondent to
proposed Sec. 106.45(h)(4). In addition, the Department proposes
moving the language describing what remedies may include to the
definition of ``remedies'' in Sec. 106.2.
Reasons: The proposed revision to require a recipient to treat
complainants and respondents equitably in its grievance procedures for
complaints of sex discrimination as opposed to limiting this
requirement only to grievance procedures for complaints of sexual
harassment is necessary to effectuate Title IX and make the regulatory
text consistent with other changes proposed by the Department regarding
a recipient's grievance procedures as explained in the discussion of
the Framework for Grievance Procedures for Complaints of Sex
Discrimination (Section II.F). The proposed addition of a definition of
``remedies'' in proposed Sec. 106.2 would render unnecessary certain
portions of the explanation of remedies in current Sec.
106.45(b)(1)(i), including the examples of remedies in that provision.
Although the Department continues to believe that a recipient must
provide remedies to a complainant and follow grievance procedures that
comply with the requirements in proposed Sec. 106.45, and if
applicable proposed Sec. 106.46, before imposing disciplinary
sanctions on a respondent, the Department proposes moving these
requirements to different provisions rather than linking them to the
requirement to treat complainants and respondents equitably. The
purpose of this proposed change is to clarify that the requirement to
treat complainants and respondents equitably is not limited to these
two requirements. One factor for a recipient to consider in ensuring
complainants and respondents are treated equitably is whether the
parties, witnesses, and other participants can engage fully in the
grievance procedures. In particular, to ensure equal opportunity for
persons with disabilities, it may be necessary for a recipient to
provide auxiliary aids and services for effective communication and
make reasonable modifications to policies, practices, and procedures.
In addition, it may be necessary for a recipient to provide language
assistance services, such as translations or interpretation, for
persons with limited English proficiency.
Section 106.45(b)(2) Conflicts of Interest/Bias
Current regulations: Section 106.45(b)(1)(iii) prohibits a Title IX
Coordinator, investigator, decisionmaker, or anyone who facilitates an
informal resolution process from having a conflict of interest or bias
for or against complainants or respondents generally or an individual
complainant or respondent. Section 106.45(b)(1)(iii) also outlines
several specific training requirements for persons filling those roles.
Current Sec. 106.45(b)(7)(i) states that the decisionmaker cannot be
the same person as the Title IX Coordinator or the investigator(s).
Proposed regulations: Consistent with the current regulations,
proposed Sec. 106.45(b)(2) would require that any person designated as
a Title IX Coordinator, investigator, or decisionmaker not have a
conflict of interest or bias for or against complainants or respondents
generally or an individual complainant or respondent. As further
explained in the discussion of proposed Sec. 106.44(k), the Department
proposes moving the requirement that the facilitator of an informal
resolution process not have a conflict of interest or bias from current
Sec. 106.45(b)(1)(iii) to proposed Sec. 106.44(k), as part of the
section of the proposed regulations that describes a recipient's
obligations related to informal resolution.
As further explained in the discussion of proposed Sec. 106.8(d),
the Department also proposes revising and moving training requirements
from current Sec. 106.45(b)(1)(iii) to a consolidated training
provision at proposed Sec. 106.8(d). The Department also proposes
eliminating the categorical prohibition on the same person serving as
both decisionmaker and Title IX Coordinator or investigator.
Reasons: To ensure that the grievance procedures are equitable, a
recipient must ensure that the procedures are administered impartially.
The Department therefore proposes retaining--in proposed Sec.
106.45(b)(2)--the requirement that any person designated as a Title IX
Coordinator, investigator, or decisionmaker must not have a conflict of
interest or bias regarding complainants or respondents generally or
regarding a particular complainant or respondent.
The Department proposes moving the requirement that the facilitator
of the informal resolution process be free from bias and conflict of
interest from current Sec. 106.45(b)(1)(iii) to proposed Sec.
106.44(k). The Department proposes this technical change to align with
the relocation of the informal resolution process from Sec.
106.45(b)(9) in the current regulations to Sec. 106.44(k) in the
proposed regulations.
The proposed regulations would continue to require the Title IX
Coordinator, investigators, and decisionmakers to receive training;
however, the Department proposes consolidating those training
requirements in proposed Sec. 106.8(d) rather than in the section on
grievance procedures as the current regulations do.
Proposed Sec. 106.45(b)(2) would also eliminate the prohibition on
the decisionmaker being the same person as the Title IX Coordinator or
investigator. Before the 2020 amendments, some recipients implemented a
single-investigator model in which one person or one team both
investigated a complaint and made findings of fact as to whether a
respondent violated the recipient's prohibition on sexual harassment.
This model, then in use by a variety of recipients across the country,
was specifically prohibited under the 2020 amendments. In 2020, the
Department said it was concerned that combining the investigative and
adjudicative functions in a single entity raised an unnecessary risk of
bias that unjustly impacts one or both parties in Title IX grievance
procedures. 85 FR 30367-69. Specifically, the Department stated that
placing these varied responsibilities in the hands of a single
individual or team risks those involved improperly relying on
information gleaned during one role to affect decisions made while
performing a different role, and that separating the roles of
investigation from adjudication protects the parties by making it more
likely that the fact-based determination regarding responsibility is
based on an objective evaluation of relevant evidence. Id. at 30369-70.
The Department stated any concern about decisionmakers not having the
same level of training or expertise as investigators would be addressed
by the regulation's ``robust training and impartiality requirements for
all individuals serving as Title IX Coordinators, investigators, or
decision-makers,'' that it would ``effectively promote the reliability
of fact-finding and the overall fairness and accuracy of the grievance
process.'' Id. at 30368
Through listening sessions and the June 2021 Title IX Public
Hearing, OCR learned that the requirement that a recipient have
separate staff members to handle investigation and adjudication is
[[Page 41467]]
burdensome for some schools in a way that undermined these schools'
ability to ensure that their education programs or activities are free
from sex discrimination under Title IX, particularly those that are
under-resourced or that do not have a large number of staff.
Stakeholders also explained that having an additional staff member who
is unfamiliar with the allegations and evidence serve as decisionmaker
after the conclusion of an investigation results in a prolonged Title
IX process, negatively impacting the students who are participating in
that process. Conversely, these stakeholders argued that using the
single-investigator model permitted recipients to investigate and
resolve complaints expeditiously, drawing from a small pool of trained
experts, and would allow a recipient to more easily and effectively
deliver the highest level of expertise available for assessing
allegations and evidence. In light of these comments, the Department is
concerned that the prohibition on the single-investigator model
sometimes worked to the detriment of the quality of recipients'
grievance procedures and their decisionmaking about the allegations and
relevant facts.
In addition, OCR learned through the June 2021 Title IX Public
Hearing that prior to the 2020 amendments, employing a single
investigator from outside the recipient's community, under the guidance
of the recipient's Title IX Coordinator, enabled some postsecondary
institutions to have a highly trained expert who could conduct an
equitable investigative process without perceived institutional bias.
Some recipients also expressed their belief that, through this model,
they saw more students seeking institutional support and resolution of
complaints.
For small or under-resourced recipients, OCR also heard that
permitting a single-investigator model would help ensure prompt and
equitable grievance procedures while reducing the number of personnel a
recipient would need for each investigation and resolution. If a
recipient has a small school or campus community, a requirement that
increases the number of employees involved in the grievance procedures
also increases the likelihood of the parties having to interact with
those employees in the regular course of their participation in the
recipient's education program or activity. OCR heard about students who
had changed majors or avoided courses, clubs and organizations, and
athletic opportunities to avoid interacting with employees in those
areas who had also administered their grievance procedures related to
sexual harassment allegations. Stakeholders who provided these comments
explained that some students had found the procedures painful, and some
had concerns about those employees knowing traumatic information about
them.
After reweighing the facts and circumstances, including but not
limited to the feedback received through listening sessions and the
June 2021 Title IX Public Hearing, it is the Department's current view
that the single-investigator model, when implemented in conjunction
with the other proposed measures designed to ensure equitable treatment
of the parties as required throughout proposed Sec. 106.45, and if
applicable proposed Sec. 106.46, can offer recipients an effective
option for resolving complaints of sex discrimination in a way that
ensures fair treatment of all parties and enables compliance with Title
IX. In conducting an investigation and reaching a determination, the
recipient's responsibility is to gather and review evidence with
neutrality and without bias or favor toward any party. That is, the
recipient is not in the role of prosecutor seeking to prove a violation
of its policy. Rather, the recipient's role is to ensure that its
education program or activity is free of unlawful sex discrimination, a
role that does not create an inherent bias or conflict of interest in
favor of one party or another. The Department's earlier stated concerns
about the reliability of fact-finding and overall fairness and accuracy
of the grievance procedures will still be effectively addressed by the
other proposed requirements which clarify a recipient's obligations and
make it easier to achieve those obligations, and these protections
would now apply to all complaints of sex discrimination, not just those
that allege sex-based harassment. Among other obligations, a recipient
must: treat the complainant and respondent equitably (proposed
Sec. Sec. 106.44(f)(1), 106.45(b)(1)); provide robust training and
anti-bias requirements (proposed Sec. Sec. 106.8(d), 106.45(b)(2));
objectively evaluate all relevant evidence (proposed Sec.
106.45(b)(6)); review all evidence gathered to determine which evidence
is relevant and what is impermissible (proposed Sec. 106.45(f)(3));
provide each party with a description of evidence that is relevant and
not otherwise impermissible (proposed Sec. 106.45(f)(4)); provide the
right to appeal a complaint dismissal (proposed Sec. 106.45(d)); and,
if additional provisions are adopted as part of its grievance
procedures, apply those provisions equally to the parties (proposed
Sec. 106.45(i)). These provisions would reinforce each other in
protecting the overall fairness and accuracy of the grievance
procedures.
In conducting an investigation and reaching a determination, the
recipient's responsibility is to gather and review evidence with
neutrality and without bias or favor toward any party. That is, the
recipient is not in the role of prosecutor seeking to prove a violation
of its policy. Rather, the recipient's role is to ensure that its
education program or activity is free of unlawful sex discrimination, a
role that does not create an inherent bias or conflict of interest in
favor of one party or another.
The Department is aware that, prior to August 2020, some recipients
used a single investigator or team of investigators to investigate
complaints of sex-based harassment and make determinations whether sex-
based harassment occurred. The Department invites comments on
recipients' experiences using that model to comply with Title IX and
the steps taken, if any, to ensure adequate, reliable, and impartial
investigation and resolution of complaints, including equitable
treatment of the parties and reliable grievance procedures that are
free from bias. The Department also invites comments on these issues
from persons who were parties or served as an advisor to a party to a
complaint that was investigated and resolved by a recipient using a
single investigator model.
Section 106.45(b)(3) Presumption That the Respondent Is Not Responsible
for the Alleged Conduct Until a Determination Is Made at the Conclusion
of the Grievance Procedures
Current regulations: Section 106.45(b)(1)(iv) requires a recipient
to include a presumption that the respondent is not responsible for the
alleged conduct until a determination regarding responsibility is made
at the conclusion of the grievance process for formal complaints of
sexual harassment.
Proposed regulations: The Department proposes maintaining this
provision with minor revisions, including relocating the provision to
proposed Sec. 106.45(b)(3) and applying the provision to complaints of
sex discrimination, not just sexual harassment.
Reasons: The proposed revisions are necessary to make the
regulatory text consistent with the Department's proposed changes to
apply the grievance procedures described in proposed Sec. 106.45 to
all forms of sex discrimination, including sex-based
[[Page 41468]]
harassment, as explained in the discussion of the Overall
Considerations and Framework (Section II.F.2.a). The Department also
notes that proposed Sec. 106.45(b)(3) would not apply to a sex
discrimination complaint that does not allege that a person violated
the recipient's prohibition on sex discrimination because in those
complaints there would not be a respondent. Nevertheless, in such cases
the Department would not presume that a recipient accused of sex
discrimination through its policy or practice operated its program or
activity in a discriminatory manner until a determination whether sex
discrimination occurred is made at the conclusion of the recipient's
grievance procedures for complaints of sex discrimination.
Section 106.45(b)(4) Timeframes
Current regulations: Section Sec. 106.45(b)(1)(v) states that,
with respect to a recipient's grievance process for formal complaints
of sexual harassment, the recipient must include reasonably prompt
timeframes for conclusion of the grievance process, including
reasonably prompt time frames for filing and resolving appeals and
informal resolution processes if the recipient offers informal
resolution processes, and a process that allows for the temporary delay
of the grievance process or the limited extension of timeframes for
good cause with written notice to the complainant and the respondent of
the delay or extension and the reasons for the action. Good cause may
include considerations such as the absence of a party, a party's
advisor, or a witness; concurrent law enforcement activity; or the need
for language assistance or accommodation of disabilities.
Proposed regulations: The Department proposes revising this
provision to state that a recipient must establish reasonably prompt
timeframes for the major stages of the grievance procedures, including
a process that allows for the reasonable extension of timeframes on a
case-by-case basis for good cause with notice to the parties that
includes the reason for the delay. The Department also proposes
providing examples of types of major stages and using ``parties''
instead of ``complainant'' and ``respondent.'' The Department proposes
removing the examples of good cause. Finally, the Department proposes
moving the revised language of this provision to proposed Sec.
106.45(b)(4). For additional requirements regarding the application of
this provision in grievance procedures for sex-based harassment
complaints involving postsecondary students, see the discussion of
proposed Sec. 106.46(e)(5).
Reasons: In the preamble to the 2020 amendments, the Department
explained that recipients should retain flexibility to designate time
frames that are reasonably prompt, and stated that what is
``reasonable'' is a ``decision made in the context of a recipient's
purpose of providing education programs or activities free from sex
discrimination, thus requiring recipients to designate time frames
taking into account the importance to students of resolving grievance
processes so that students may focus their attention on participating
in education programs or activities,'' 85 FR 30272. The Department
added that a recipient must balance this consideration ``with the need
for recipients to conduct grievance processes fairly in a manner that
reaches reliable outcomes, meeting the requirements of Sec. 106.45, in
deciding what time frames to include as `reasonably prompt' in a
recipient's grievance process for formal complaints of sexual
harassment under Title IX.'' Id. Although the Department supports the
rationale of current Sec. 106.45(b)(1)(v), it proposes making minor
revisions to the provision to simplify the regulatory language and
better align it with other sections of the Title IX regulations and the
Department's Clery Act regulations. In particular, the Clery Act
regulations at 34 CFR 668.46(k)(3)(i)(A) require a proceeding that both
is ``[c]ompleted within reasonably prompt timeframes'' designated by
the postsecondary institution's policy and includes ``a process that
allows for the extension of timeframes for good cause with written
notice to the accuser and the accused of the delay and the reason for
the delay.'' Proposed Sec. 106.45(b)(4) uses similar language.
Allowing a recipient to use the same standard for different types of
Title IX grievance procedures, and a standard that is largely similar
to that required for postsecondary institutions under the Clery Act,
would reduce administrative burden for all recipients and, in
particular, postsecondary institutions.
To increase clarity, proposed Sec. 106.45(b)(4) would require a
recipient to establish timeframes for the major stages of the grievance
procedures rather than only for the conclusion of the grievance process
as in the current provision. Requiring a recipient to establish
timeframes for the major stages of its grievance procedures would help
parties understand the approximate length of each stage of the
recipient's process, while the current provision requires only that a
recipient alert parties to a timeframe for the completion of the
overall process. Also, to assist recipients in understanding what a
major stage is, the Department proposes providing examples in Sec.
106.45(b)(4) such as evaluation (i.e., the recipient's determination of
whether to dismiss or investigate a complaint of sex discrimination),
investigation, determination, and appeal, if any.
The Department also proposes deleting the examples of good cause
for extending the recipient's timeframe and adding a requirement to
consider extensions on a case-by-case basis. After reviewing these
examples, the Department is concerned that their inclusion in the
regulations may have inadvertently suggested to recipients that
extensions were mandatory in each of those situations--regardless of
whether they were requested by the parties or whether extensions were
warranted in the particular situation--which may have slowed down
overall investigation and resolution of complaints. The Department
continues to believe that good cause may include, for example,
considerations such as the absence of a party, a party's advisor, or a
witness, or a variety of other situations. In proposed Sec.
106.45(b)(4), the Department would remove the examples from the
regulatory text to help clarify that the need to extend timeframes must
be considered on a case-by-case basis. Recipients may be able to
address many of these circumstances in a way that can avoid the need
for an extension. For example, a witness who is unavailable in person
may nevertheless be available through videoconference. Likewise, a
recipient may require a party to choose an advisor who has appropriate
availability, or to select another advisor with sufficient availability
if their current advisor's availability is very limited, to enable the
grievance procedures to proceed promptly and equitably. With respect to
the need for language assistance or reasonable modifications, the
Department anticipates that a recipient should ordinarily be expected
to address these needs within its established timeframes. For example,
a recipient should be prepared to provide a sign language or foreign
language interpreter from the outset if needed for a party or witness
to participate in the grievance procedures. However, when the
reasonable modification a party requests is itself an extension of time
(for example, additional time for an individual with ADHD who requires
additional time to review or respond to allegations), it may be
appropriate for the recipient to extend time on this basis. In any
event, a recipient should
[[Page 41469]]
bear in mind that although proposed Sec. 106.45(b)(4) would provide
flexibility to accommodate the need for extensions, the recipient
remains obligated to ensure that its overall grievance procedures are
prompt and equitable to comply with proposed Sec. 106.45, and if
applicable proposed Sec. 106.46.
In addition, the Department proposes revising Sec. 106.45(b)(4) to
state that a recipient must provide notice of an extension to the
parties rather than to ``the complainant and the respondent.'' This
change would make clear that in cases in which there are multiple
complainants or respondents (for example, if several complaints are
consolidated), a recipient must provide notice of extensions to all
parties. The Department also proposes changing the term ``grievance
process'' to the term ``grievance procedures'' to be consistent with
language used throughout proposed Sec. Sec. 106.44, 106.45, and
106.46, including the heading of this subpart.
Section 106.45(b)(5) Reasonable Limitations on Sharing of Information
Current regulations: Section 106.45(b)(5)(iii) prohibits a
recipient from restricting the ability of either party to discuss the
allegations under investigation or to gather and present relevant
evidence.
Proposed regulations: Proposed Sec. 106.45(b)(5) states that a
recipient must take reasonable steps to protect the privacy of the
parties and witnesses during the pendency of a recipient's grievance
procedures. These steps to protect privacy must not restrict the
parties' ability to obtain and present evidence, including by speaking
to witnesses, subject to proposed Sec. 106.71; to consult with a
family member, confidential resource, or advisor; to prepare for a
hearing, if one is offered; or otherwise to defend their interests. For
additional requirements regarding the application of this provision in
grievance procedures for sex-based harassment complaints involving
postsecondary students, see the discussion of proposed Sec.
106.46(e)(6)(iii).
Reasons: The current regulations, at Sec. 106.45(b)(5)(iii), state
that a recipient must not restrict either party's ability to discuss
the allegations under investigation or to gather and present relevant
evidence. The Department proposes moving this requirement to proposed
Sec. 106.45(b)(5) and modifying this provision in several ways. Under
proposed Sec. 106.45(b)(5), the Department would require a recipient
to take reasonable steps--within specified limits--to protect the
privacy of the parties and witnesses while the grievance procedures are
ongoing.
First, the Department proposes revising the current regulations
that prohibit a recipient from restricting in any way the parties'
ability to discuss the allegations under investigation. Proposed Sec.
106.45(b)(5) would instead require a recipient to take reasonable steps
to protect privacy; however, proposed Sec. 106.45(b)(5) would also
continue to protect the parties' ability to discuss the allegations by
imposing limitations on the types of reasonable steps that a recipient
would be able to take to protect privacy. Under proposed Sec.
106.45(b)(5), a recipient would not be permitted to restrict the
parties' ability to obtain and present evidence, including by speaking
to witnesses. Likewise, a recipient would not be permitted to restrict
the parties' ability to speak with a family member, confidential
resource, or advisor. A recipient would also not be permitted to take
steps to protect privacy that would restrict the parties' ability to
prepare for a hearing (if one is offered) or to otherwise defend their
interests (e.g., restricting the parties' ability to speak with
providers of disability-related services or language access services).
In the preamble to the 2020 amendments, the Department concluded
that a recipient should not restrict the right of its students and
employees to discuss the allegations under investigation. In reaching
this conclusion, the Department highlighted the importance of allowing
parties ``to seek advice and support outside the recipient's provision
of supportive measures,'' and the ``ability to discuss the allegation
under investigation where the party intends to, for example, criticize
the recipient's handling of the investigation or approach to Title IX
generally.'' 85 FR 30295. The Department determined that a fair
grievance process required that ``both parties have every opportunity
to fully, meaningfully participate by locating evidence that furthers
the party's interests and by confiding in others to receive emotional
support and for other personally expressive purposes,'' and that such
benefits outweighed the risks of harm identified by stakeholders. Id.
at 30296.
During the June 2021 Title IX Public Hearing, stakeholders
expressed concerns regarding the Department's prohibition on any
restrictions on the parties' ability to discuss the allegations and to
gather relevant evidence, emphasizing that parties need protection from
slander and social retaliation, that some students use social media to
harass and shame the parties, and that the potential consequences of
harassment based on students' participation in the recipient's Title IX
process and related allegations are serious, including attempted
suicide. One commenter expressed during the June 2021 Title IX Public
Hearing that schools should not prohibit parties from discussing their
cases with others since such discussions may be necessary for gathering
evidence, but schools should stop that information from being used to
retaliate. A group of stakeholders urged the Department through a
listening session to permit reasonable limitations on the sharing of
information to protect students and prevent the spread of sensitive
information that would undermine fair proceedings, as long as these
limitations do not prejudice the ability of the parties to collect
evidence, speak to witnesses, consult with an advisor, or prepare for a
hearing. These stakeholders asked the Department to make clear that it
will not sanction schools that take reasonable steps to protect privacy
or require parties to keep information confidential.
Upon considering the issue and reweighing the facts and
circumstances, including views expressed by a wide array of
stakeholders in listening sessions and in connection with the June 2021
Title IX Public Hearing, the Department proposes modifying the current
regulations to better address these concerns. Through proposed Sec.
106.45(b)(5), the Department would take account of both the parties'
need to disclose information to certain individuals and the harms of
overbroad disclosure. Proposed Sec. 106.45(b)(5) would enable a
recipient to take steps to prevent the harms repeatedly raised by
stakeholders, while also respecting the Department's objectives as
discussed in the preamble to the 2020 amendments.
Proposed Sec. 106.45(b)(5) would protect the ability of the
parties to gather evidence and to confide in others and would address
concerns about the chilling effect on reporting and potential
interference with the integrity of the grievance procedures associated
with widespread information sharing. Under proposed Sec. 106.45(b)(5),
the Department would require a recipient to take reasonable steps to
protect the privacy of the parties and witnesses during the pendency of
the grievance procedures. In doing so, proposed Sec. 106.45(b)(5)
would fulfill the purpose of enabling a recipient to take steps that
are responsive to its educational environment and its interest in
preserving the fairness and integrity of its grievance procedures.
Unrestricted disclosures of sensitive information could threaten the
fairness of the
[[Page 41470]]
process by deterring parties or witnesses from participating,
negatively affecting the reliability of witness testimony, facilitating
retaliatory harassment, and other potential harms. Even if the parties,
witnesses, and others participating do not disclose sensitive
information, the fear that such information might be disclosed could
affect those individuals' willingness to participate fully in the
process. Proposed Sec. 106.45(b)(5) would not permit a recipient to
prohibit parties from criticizing the recipient's handling of the
grievance procedures; however, the provision would allow a recipient to
take reasonable steps to protect the privacy of the parties and
witnesses during the pendency of the grievance procedures.
The proposed regulations would also include protections against
witness intimidation and retaliatory disclosures of information as part
of the general prohibition on retaliation under current and proposed
Sec. 106.71. Proposed Sec. 106.45(b)(5) would also further protect
against the harmful effects of improper disclosures by requiring a
recipient to take proactive steps to protect privacy while the
grievance procedures are ongoing. A party's intimidation of a witness
or a party's improper disclosure of information to a witness could
compromise the fairness of the grievance procedures. Whereas current
and proposed Sec. 106.71 would allow, as appropriate, subsequent
disciplinary action for a party who engages in this type of retaliatory
conduct, proposed Sec. 106.45(b)(5) would focus on the preventive
steps that a recipient would need to take as a means of safeguarding
the fairness of the process and the reliability of the outcome. In
addition, proposed Sec. 106.45(b)(5) would not apply after the
conclusion of the grievance procedures, yet the protections of current
and proposed Sec. 106.71 would remain in effect.
Proposed Sec. 106.45(b)(5) would cabin the discretion that a
recipient has in taking these reasonable steps to protect privacy,
however, including by clarifying that any steps must not restrict the
parties' ability to obtain and present evidence. Similarly, to ensure
the fairness of the process, proposed Sec. 106.45(b)(5) would prohibit
the recipient from taking any steps to protect privacy that restrict
the parties' ability to consult with an advisor, prepare for a hearing,
or otherwise defend their interests consistent with current Sec.
106.45(b)(5)(iv) and (6). In addition, consistent with the Department's
previous acknowledgment that the grievance process is ``challenging,
difficult, and stressful to navigate,'' 85 FR 30305, proposed Sec.
106.45(b)(5) would protect the parties' ability to speak with family
members or confidential resources about the process. Moreover, nothing
in proposed Sec. 106.45(b)(5) would prohibit a recipient from allowing
the parties to consult with individuals beyond those listed in Sec.
106.45(b)(5). Finally, proposed Sec. 106.45(b)(5) would protect the
parties' ability to speak with witnesses, subject to the requirement in
proposed Sec. 106.71 that a recipient prohibit intimidation, threats,
coercion, or discrimination against any individual, including
witnesses, for the purpose of interfering with any right under Title
IX. A recipient's obligations under proposed Sec. 106.71 are explained
in more detail in the discussion of that proposed provision.
The Department reiterates that students, employees, and third
parties retain their First Amendment rights, and the Department's
proposed regulations would not infringe on these rights. The Department
further notes that current Sec. 106.6(d), to which the Department is
not proposing any changes, states that nothing in the Title IX
regulations ``requires a recipient to . . . [r]estrict any rights that
would otherwise be protected from government action by the First
Amendment of the U.S. Constitution.'' 34 CFR 106.6(d). Accordingly,
when taking reasonable steps to protect the privacy of the parties and
witnesses, a recipient must be mindful of the rights protected by the
First Amendment, when relevant.
Section 106.45(b)(6) Objective Evaluation of All Relevant Evidence and
106.45(B)(7) Exclusion of Impermissible Evidence
Current regulations: Section 106.45(b)(1)(ii) requires a recipient
to objectively evaluate all relevant evidence, including both
inculpatory and exculpatory evidence. In addition, current Sec.
106.45(b)(1)(ii) prohibits recipients from making credibility
determinations based on a person's status as a complainant, respondent,
or witness.
The current regulations also address in several different
provisions certain types of evidence that cannot be used or are not
relevant in the grievance procedures. Current Sec. 106.45(b)(1)(x)
prohibits the use of questions or evidence that constitute, or seek
disclosure of, information protected under a legally recognized
privilege unless that privilege has been waived by the person holding
the privilege. In addition, current Sec. 106.45(b)(5)(i) prohibits a
recipient from accessing, considering, disclosing, or otherwise using a
party's treatment records made or maintained by recognized
professionals, paraprofessionals, or assistants to those professionals
acting in those specified capacities unless the recipient obtains
voluntary, written consent of that party for use in the recipient's
grievance procedures as defined in current Sec. 106.45. Further,
current Sec. 106.45(b)(6)(i) and (ii) state that ``[q]uestions and
evidence about the complainant's sexual predisposition or prior sexual
behavior are not relevant'' unless questions and evidence about the
complainant's prior sexual behavior are offered to prove that someone
other than the respondent committed the alleged conduct or to prove
consent, if the questions and evidence pertain to specific incidents of
the complainant's prior sexual behavior.
Proposed regulations: In proposed Sec. 106.45(b)(6), the
Department would retain the requirement that a recipient objectively
evaluate all relevant evidence, including both inculpatory and
exculpatory evidence, and the requirement that credibility
determinations must not be based on a person's status as a complainant,
respondent, or witness. The Department proposes making a minor change
to this provision by incorporating a cross-reference to the definition
of ``relevant'' in proposed Sec. 106.2. The Department also proposes
moving and clarifying the three categories of impermissible evidence,
which appear in various provisions in the current regulations, to
proposed Sec. 106.45(b)(7). Under proposed Sec. 106.45(b)(7), a
recipient must exclude these three types of evidence, and questions
seeking these types of evidence, as impermissible (i.e., must not be
accessed, considered, disclosed, or otherwise used), regardless of
whether they are relevant--except as specified in proposed Sec.
106.45(b)(7).
The requirement that evidence must be relevant and the prohibition
on the use of three types of evidence (except as specified in proposed
Sec. 106.45(b)(7)) would apply to the grievance procedures under
proposed Sec. 106.45, and if applicable proposed Sec. 106.46. Thus,
the prohibitions on the use of evidence, and questions seeking that
evidence, would apply to all recipients in all sex discrimination
grievance procedures.
Under the first category in proposed Sec. 106.45(b)(7)(i), a
recipient could not access, consider, disclose, or otherwise use in its
grievance procedures evidence that is protected under a privilege as
recognized by Federal or State law (e.g., attorney-client privilege)--
unless the person holding the privilege has waived it voluntarily in a
manner that is
[[Page 41471]]
permitted in the recipient's jurisdiction. In light of this proposed
addition, the Department proposes removing current Sec.
106.45(b)(1)(x), which similarly prohibits the use of evidence or
questions that seek evidence protected under a legally recognized
privilege.
Under the second category in proposed Sec. 106.45(b)(7)(ii), a
party's records that are made or maintained by a physician,
psychologist, or other recognized professional or paraprofessional in
connection with the provision of treatment to the party must not be
accessed, considered, disclosed, or otherwise used in the grievance
procedures without that party's consent for the records to be used in
the recipient's grievance procedures. Any consent must be voluntary and
in writing. Current Sec. 106.45(b)(5)(i) prohibits a recipient from
accessing, considering, disclosing, or otherwise using these treatment
records. The proposed regulations would move this prohibition to
proposed Sec. 106.45(b)(7)(ii).
Under the third category in proposed Sec. 106.45(b)(7)(iii),
evidence related to the complainant's prior sexual conduct must not be
accessed, considered, disclosed, or otherwise used in a recipient's
grievance procedures unless it is offered to prove that someone other
than the respondent committed the alleged conduct or to prove consent
with evidence concerning specific incidents of the complainant's prior
sexual conduct with the respondent. The proposed regulations would
clarify that the fact that prior consensual sexual conduct between the
complainant and respondent has occurred does not demonstrate or imply
the complainant's consent to the alleged sex-based harassment or
preclude a determination that sex-based harassment occurred. The
consideration of evidence related to the complainant's sexual interests
would also be impermissible. Because the proposed regulations
incorporate these prohibitions into proposed Sec. 106.45(b)(7)(iii),
the Department proposes removing descriptions of these same
prohibitions from current Sec. 106.45(b)(6)(i) and (ii), which address
hearings and written questions. Instead, the Department proposes
including cross-references to proposed Sec. 106.45(b)(7) within
proposed Sec. 106.46(f), which would address credibility assessments
and hearings.
Reasons: In proposed Sec. 106.45(b)(6), the Department proposes
inserting a cross-reference to proposed Sec. 106.2 to make clear that
a recipient should apply the regulatory definition of ``relevant'' at
proposed Sec. 106.2 when evaluating the relevance of evidence. As
noted in the discussion of the definition of ``relevant'' in proposed
Sec. 106.2, the Department proposes adding this definition to assist
recipients in determining which evidence is relevant and to help
parties understand these determinations.
Proposed Sec. 106.45(b)(7) identifies three categories of evidence
that a recipient must not access, consider, disclose, or otherwise use,
or permit questions seeking, in a recipient's grievance procedures
required by the proposed regulations regardless of whether evidence in
these categories is relevant. The current regulations create similar
protections against any use of this evidence but do so in several
different provisions. The Department proposes moving these provisions
to Sec. 106.45(b)(7) for ease of reference and to make clear to
recipients and others that these types of evidence would be excluded
from the general requirement that the recipient conduct an objective
evaluation of all relevant evidence. The Department is also proposing
minor changes to the three categories of evidence that may not be used
regardless of relevance.
Under the first category, the Department proposes prohibiting any
use of evidence or questions seeking evidence that is protected under a
privilege as recognized by Federal or State law. Current Sec.
106.45(b)(1)(x) prohibits the use of questions or evidence protected
under a legally recognized privilege unless that privilege has been
waived by the person holding the privilege. The Department remains
committed to protecting this information, and proposes moving this
protection of privileged information to Sec. 106.45(b)(7)(i), without
changing the nature or scope of this protection. Current Sec.
106.45(b)(1)(x) prohibits a recipient from using information protected
by a legally recognized privilege without specifying the source(s) for
this privilege. To avoid any confusion, the Department proposes
clarifying that the source of that legally recognized privilege would
be a privilege that arises under Federal or State law. In the proposed
regulations, the Department would clarify that this evidence may be
used in the recipient's grievance procedures only if the person holding
the privilege has waived the privilege voluntarily and in a manner
permitted in the recipient's jurisdiction. Consequently, the Department
proposes removing current Sec. 106.45(b)(1)(x), which prohibits the
use of evidence or questions that seek evidence protected under a
legally recognized privilege, as duplicative of proposed Sec.
106.45(b)(7)(i).
Under the second category, the Department proposes prohibiting any
use of, or questions seeking, a party's records that are made or
maintained by a physician, psychologist, or other recognized
professional or paraprofessional in connection with the provision of
treatment to the party absent the party's voluntary, written consent.
The current regulations prohibit the use of these records at Sec.
106.45(b)(5)(i). The Department proposes reaffirming the protection of
treatment records by moving it to the list of impermissible types of
evidence at Sec. 106.45(b)(7)(ii).
The Department also proposes technical edits to this provision.
Specifically, the Department proposes removing the term
``psychiatrist'' from the list of professions because a psychiatrist is
covered by the term ``physician.'' The Department also proposes
removing the phrase ``requiring the professional or paraprofessional to
be acting or assisting in the professional or paraprofessional's
capacity'' because this is covered by the requirement that the records
be made in connection with the provision of treatment. The protection
of treatment records under proposed Sec. 106.45(b)(7)(ii) would
encompass treatment records that are made and maintained by the
recipient (such as when a physician is employed by the recipient), as
well as treatment records that are made and maintained by external
providers. Even when a party affirmatively provides treatment records
to the recipient, proposed Sec. 106.45(b)(7)(ii) would still require
the recipient to obtain voluntary, written consent to use those records
in the recipient's grievance procedures.
Current Sec. 106.45(b)(5)(i) references the FERPA regulations, at
34 CFR 99.3, and requires the recipient to obtain consent of a parent
related to the party's records for a party that is not an eligible
student under those regulations. The FERPA regulations define an
eligible student as ``a student who has reached 18 years of age or is
attending an institution of postsecondary education.'' 34 CFR 99.3. The
Department proposes removing this reference because the proposed
regulations would make clear, in proposed Sec. 106.6(g), that nothing
in these regulations would limit the rights of a parent, guardian, or
otherwise authorized legal representative to act on behalf of their
child, including in a recipient's grievance procedures. When evaluating
evidence that is relevant but may be impermissible, the Department
expects recipients to be mindful of the rights of parents, guardians,
and other authorized legal representatives under
[[Page 41472]]
proposed Sec. 106.6(g). These rights may include the authority to
provide consent on behalf of a minor student for the use of such
evidence.
Under the third category, the Department proposes clarifying in
Sec. 106.45(b)(7)(iii) that evidence, or questions seeking evidence,
about the complainant's sexual interests and prior sexual conduct would
be impermissible and a recipient must not rely upon such evidence
regardless of relevance other than in either of two narrow exceptions:
(1) when evidence of the complainant's prior sexual conduct is offered
to prove that someone other than the respondent committed the alleged
conduct; or (2) when evidence concerning specific incidents of the
complainant's prior sexual conduct with the respondent is offered to
prove consent. This provision is substantially similar to the
corresponding prohibition in the current regulations, at Sec.
106.45(b)(6)(i) and (ii), on questions and evidence about the
complainant's sexual predisposition and prior sexual behavior. In the
preamble to the 2020 amendments, the Department noted that these
prohibitions ``mirror[ ] rape shield protections applied in Federal
courts,'' 85 FR 30103, and that ``rape shield protections serve a
critically important purpose in a Title IX sexual harassment grievance
process: Protecting complainants from being asked about or having
evidence considered regarding sexual behavior, with two limited
exceptions,'' id. at 30351. Although the current regulations deem these
types of questions and evidence not to be relevant, see id. at 30353,
the proposed regulations would clarify that these types of questions
and use of these types of evidence would be impermissible regardless of
relevance.
In addition, the Department proposes adding language concerning the
exception for specific incidents of prior sexual conduct between the
complainant and the respondent to clarify the narrow scope of this
exception. Proposed Sec. 106.45(b)(7)(iii) would explain that although
evidence concerning specific incidents of a complainant's prior sexual
conduct with the respondent may be permissible when offered to prove
consent, the mere fact that prior consensual sexual conduct between the
complainant and respondent occurred or that there are similarities in
the types of communications related to consent does not itself
demonstrate or imply the complainant's consent to the alleged sex-based
harassment and does not preclude a determination that sex-based
harassment occurred.
The Department also proposes modifying two terms in Sec.
106.45(b)(7)(iii), though the proposed provision would exclude the same
universe of questions and evidence as the current provision. The
Department proposes replacing references to the complainant's ``prior
sexual behavior'' with ``prior sexual conduct.'' The Department
tentatively views the term ``prior sexual conduct'' as more precise
because the proposed regulations repeatedly use the term ``conduct,''
including within this provision to refer to an exception for evidence
that would be offered to prove who engaged in the alleged conduct.
In addition, the Department proposes replacing the term ``sexual
predisposition'' with the term ``sexual interests.'' In the preamble to
the 2020 amendments, the Department stated that its ``use of the phrase
`sexual predisposition' is mirrored in Fed. R. Evid. 412.'' Id. In
response to the 2018 NPRM, the Department received comments that the
phrase `` `sexual predisposition' . . . harkens back to the past and
puts on trial the sexual practices and identity of the complainant,
which have no relevance to the adjudication of particular
allegations.'' Id. at 30351. The Department sought to clarify in the
preamble to the 2020 amendments that ``far from indicating intent to
harken back to the past where sexual practices of a complainant were
used against a complainant, the final regulations take a strong
position that questions or evidence of a complainant's `sexual
predisposition' are simply irrelevant, without exception.'' Id. at
30353. The Department would maintain its position that questions
seeking this evidence are not permitted and that this evidence must not
be relied upon; however, the Department would seek to convey this
prohibition without using an outdated phrase that may conjure the type
of assumptions that the Department seeks to prohibit. Evidence related
to sexual predisposition that is prohibited under the current
regulations would continue to be prohibited as evidence related to
sexual interests under the proposed regulations.
The Department proposes moving the protection just described from
current Sec. 106.45(b)(6)(i) and (ii) to proposed Sec.
106.45(b)(7)(iii). In the current regulations, the prohibition on
questions and evidence about the complainant's sexual predisposition
and prior sexual behavior appears in the section about hearings but
does not provide protection when the same evidence is presented in
connection with an investigation. Instead, under the current
regulations, when evidence related to a party's sexual predisposition
or prior sexual behavior is directly related to the allegations, the
Department stated that ``the recipient should allow both parties an
equal opportunity to inspect and review such evidence to be able to
prepare to respond to it or object to its introduction in the
investigative report or at the hearing.'' Id. at 30428. The Department
is concerned that permitting the parties to review these types of
evidence undermines the purpose of this protection. Disclosing evidence
of a complainant's prior sexual conduct (beyond the narrow exceptions)
or sexual interests could unnecessarily harm complainants and chill
reporting even if questioning about that evidence is ultimately
prohibited at a hearing. Consequently, the Department proposes moving
the prohibition on questions and evidence about sexual interests and
prior sexual conduct to Sec. 106.45(b)(7)(iii), where it would apply
to the entirety of the grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46.
Section 106.45(c) Notice of Allegations
Current regulations: Current Sec. 106.45(b)(2) requires a
recipient to provide parties who are known to the recipient with
written notice of the allegations of sexual harassment and of the
recipient's grievance process, including any informal resolution
process. Sufficient detail must be provided in this notice, including
the conduct allegedly constituting sexual harassment, the identities of
the parties involved in the alleged incident, and the date and location
of the alleged incident.
In addition, current Sec. 106.45(b)(2) requires that the notice
inform the parties that they may have an advisor of their choice, who
may be an attorney, that they have a right to inspect and review
certain evidence, and of any provision in the recipient's code of
conduct that prohibits knowingly making false statements or knowingly
submitting false information during the grievance process. Current
Sec. 106.45(b)(2) also provides that if, in the course of an
investigation, the recipient decides to investigate allegations about
the complainant or respondent that are not included in the notice
provided above, the recipient must provide notice of the additional
allegations to the parties whose identities are known.
The current regulations do not include specific requirements for a
written notice of allegations for complaints of sex discrimination
other
[[Page 41473]]
than formal complaints of sexual harassment.
Proposed regulations: The Department proposes maintaining some
components of current Sec. 106.45(b)(2), eliminating or clarifying
others, and extending the requirement for a recipient to provide the
parties with notice of allegations in its resolution of any complaints
of sex discrimination, rather than only for sexual harassment. The
Department proposes a more detailed written notice of allegations for
complaints of sex-based harassment involving students at postsecondary
institutions in proposed Sec. 106.46(c).
Because the proposed regulations do not include a formal complaint
requirement, the Department would clarify that the notice of
allegations must be provided upon initiation of the recipient's
grievance procedures as described in proposed Sec. 106.45 and any
informal resolution process under proposed Sec. 106.44(k).
Proposed Sec. 106.45(c) would preserve the current requirements
that the recipient notify the parties of the applicable grievance
procedures and provide sufficient information available at the time to
allow the parties to respond to the allegations, including the
identities of the parties involved in the incident, the conduct alleged
to constitute sex discrimination under Title IX, and the date and
location of the alleged incident, to the extent that information is
available to the recipient. The Department proposes requiring the
notice to also include a statement that retaliation is prohibited.
Proposed Sec. 106.45(c) would preserve, with some additional
clarification, the requirement in the current regulations that a
recipient provide notice of additional allegations to the parties if,
in the course of an investigation, the recipient decides to investigate
additional allegations about the respondent, if applicable, that were
not included in the initial notice.
The Department proposes giving recipients flexibility to provide
the notice that would be required under proposed Sec. 106.45(c) either
orally or in writing.
For additional requirements regarding the application of this
provision in grievance procedures for sex-based harassment complaints
involving postsecondary students, see the discussion of proposed Sec.
106.46(c).
Reasons: Consistent with the requirement to provide adequate,
reliable, and impartial investigations, proposed Sec. 106.45(c) would
require a recipient to provide the parties with notice of the
allegations. The Supreme Court, in the context of a due process case
concerning the rights of public school students facing temporary
disciplinary suspension, reinforced the importance of this opportunity,
stating that students in that context are entitled to notice of the
charges and an explanation of the evidence against them. Goss, 419 U.S.
at 581. The Department therefore proposes applying this principle to a
recipient's initiation of grievance procedures for any complaint of sex
discrimination. Proposed Sec. 106.45(c) would require a recipient to
provide notice of the applicable grievance procedures, any informal
resolution process, the identities of the parties involved in the
incident, the conduct alleged to constitute sex discrimination under
Title IX, and the date and location of the alleged incident, to the
extent that information is available to the recipient.
The Department also proposes requiring a recipient to notify the
parties that retaliation is prohibited in proposed Sec. 106.45(c).
This proposed change responds to comments OCR received in the June 2021
Title IX Public Hearing and in listening sessions that complainants
sometimes experience retaliation after complaining of sex
discrimination. Requiring a recipient to remind the parties early in
the grievance procedures that retaliation for making a complaint or
otherwise participating in the grievance procedures is prohibited would
help prevent efforts to retaliate and would ensure that parties know to
report it if it happens.
Proposed Sec. 106.45(c) would preserve the requirement in current
Sec. 106.45(b)(2)(ii) that a recipient provide notice of additional
allegations to the parties if, in the course of an investigation, the
recipient decides to investigate additional allegations that were not
included in the initial notice. This requirement is important for
ensuring that parties have sufficient information about the allegations
at issue with sufficient time as set out in the recipient's grievance
procedures to identify or provide evidence relevant to those
allegations. Consistent with the scope of the grievance procedures
under proposed Sec. 106.45, the Department proposes changing this
requirement to cover any additional allegations of sex discrimination.
The Department proposes a minor change to provide better guidance about
the circumstances that would trigger this requirement. The proposed
addition would specify that the additional allegations requiring notice
are about: (1) the respondent's conduct toward the complainant, if
applicable; or (2) conduct alleged in a new complaint that has been
consolidated with the original complaint.
As further explained in the discussion of proposed Sec. 106.46(c),
the Department proposes requiring a more detailed and formal notice of
allegations for complaints of sex-based harassment involving student
parties at postsecondary institutions. The Department proposes that
complaints of sex discrimination but not sex-based harassment involving
postsecondary student parties be resolved under the more flexible and
streamlined requirements of proposed Sec. 106.45(c).
Proposed Sec. 106.45(c) would not prescribe whether notice of the
allegations must be in writing; a recipient would be able exercise its
discretion regarding whether to provide the required notice in writing.
In some cases, it may be important to provide written notice of the
allegations, particularly in cases involving more serious conduct and
more serious consequences. Written notice may also sometimes be
required under State or local law or recipient policy where suspension
or other serious disciplinary consequences may apply. In all cases,
proposed Sec. 106.8(f) would require the recipient to maintain records
documenting its response to complaints of sex discrimination, including
the notice of allegations. However, the Department does not propose to
require notice of the allegations to be in writing in all cases because
doing so may limit a recipient's ability to respond promptly and in an
age- and developmentally appropriate way when a student complains of
sex discrimination. For example, in the elementary school or secondary
school context, a requirement that a recipient always provide written
notice of allegations would limit a recipient's ability to respond to
an incident when it occurs, even though such a prompt response can be a
valuable teaching moment, particularly with younger students. And with
respect to many sex discrimination complaints that do not allege sex-
based harassment, there may be no respondent and therefore no need to
provide notice of the allegations because the complainant will already
have information about the alleged sex discrimination. In all cases,
however, the proposed regulations would require the notice of the
allegations to be clear so that a respondent and complainant both
understand the alleged conduct the recipient intends to investigate.
Clear notice affords each party the opportunity to present their
account of what happened, including providing relevant evidence and
witnesses in support of their account. When notice is
[[Page 41474]]
inadequate, it would not meet the requirements of proposed Sec.
106.45(c).
In addition, proposed Sec. 106.45(c) would not include an express
provision permitting a recipient to delay providing notice of the
allegations to the parties in circumstances when the recipient has
legitimate concerns for the safety of any person as a result of
providing notice. The Department's current view is that it is not
necessary to include an express provision authorizing a recipient to
delay providing notice of the allegations in order to address safety
concerns because ``upon initiation of grievance procedures'' in
proposed Sec. 106.45(c) should be understood to permit a recipient to
delay notice to the parties in order to address safety concerns.
Consistent with proposed Sec. 106.46(c)(3), a recipient's legitimate
safety concerns must be based on individualized safety and risk
analysis and not on mere speculation or stereotypes.
Similarly, proposed Sec. 106.45(c) would not require the notice of
allegations to include specific statements that the respondent is
presumed not responsible, that a determination regarding responsibility
is made at the conclusion of the grievance process, that parties may
have an advisor of their choice, that they can review evidence, or
whether the recipient's code of conduct prohibits knowingly making
false statements or knowingly submitting false information, though a
recipient may include such statements in its notice of allegations if
it determines that doing so is appropriate. As with the question of
whether the notice of allegations should be reduced to writing,
providing the parties notice of this information may be appropriate and
helpful in some cases, particularly in cases involving more serious
conduct and more serious consequences, but the Department's tentative
view is that requiring it in all cases may prevent a recipient from
responding promptly and appropriately to all forms of sex
discrimination in the educational environment. As explained in more
detail in the discussion of proposed Sec. 106.46(c), a postsecondary
institution would be required to communicate these points in writing
when implementing grievance procedures for complaints of sex-based
harassment involving postsecondary students in light of the unique
circumstances of those students.
Section 106.45(d) Dismissal of a Complaint
Current regulations: Section 106.45(b)(3)(i) states that a
recipient must investigate allegations in a formal complaint unless the
conduct alleged in the formal complaint would not constitute ``sexual
harassment'' as defined in current Sec. 106.30 if proved, did not
occur in the recipient's education program or activity, or did not
occur against a person in the United States. In such cases, the
recipient must dismiss the complaint with respect to that conduct for
purposes of sexual harassment. Section 106.45(b)(3)(i) further states
that such dismissals do not preclude the recipient from taking action
under a different provision of its code of conduct.
Current section 106.45(b)(3)(ii) permits a recipient to dismiss a
formal complaint or any of the allegations raised in a formal complaint
if at any time during the investigation or hearing, the complainant
notifies the Title IX Coordinator in writing that the complainant would
like to withdraw the complaint or any of the allegations in the
complaint, the respondent is no longer enrolled or employed by the
recipient, or specific circumstances prevent the recipient from
gathering sufficient evidence to make a determination on the complaint
or any of the complaint allegations.
When a recipient dismisses a complaint for any of these reasons,
current Sec. 106.45(b)(3)(iii) requires the recipient to promptly and
simultaneously send written notice of the dismissal and the reasons for
it to the parties.
Proposed regulations: The Department proposes revising Sec.
106.45(b)(3) to permit, but not require, a recipient to dismiss
allegations in a complaint of sex discrimination in certain
circumstances. Proposed Sec. 106.45(d)(4) would further require a
recipient that dismisses a complaint to comply with the requirements of
proposed Sec. 106.44 by, at a minimum: (1) offering supportive
measures to the complainant as appropriate under proposed Sec.
106.44(g); (2) offering supportive measures to the respondent as
appropriate, under proposed Sec. 106.44(g), for dismissals under Sec.
106.45(d)(1)(iii) or (iv) in which the respondent has been notified of
the allegations; and (3) requiring its Title IX coordinator to take
other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity under proposed Sec. 106.44(f)(6), in
addition to remedies provided to an individual complainant.
The Department proposes adding Sec. 106.45(d)(1)(i) to provide
that a recipient may dismiss a complaint when it is unable to identify
the respondent after taking reasonable steps to do so. The Department
also proposes changing current Sec. 106.45(b)(3)(ii) to state in
proposed Sec. 106.45(d)(1)(ii) that a recipient may dismiss a
complaint if the respondent is not participating in the recipient's
education program or activity or not employed by the recipient, rather
than allowing dismissal only if the respondent is no longer enrolled in
the recipient's education program or activity or no longer employed by
the recipient. The Department proposes maintaining, in proposed Sec.
106.45(d)(1)(iii), the part of current Sec. 106.45(b)(3)(ii) that
permits a recipient to dismiss a complaint or complaint allegations
when a complainant withdraws them. The Department proposes revising
this provision by eliminating the requirement that the complainant
notify the Title IX Coordinator in writing of the withdrawal (except in
postsecondary complaints of sex-based harassment involving a student
party, as explained in greater detail in the discussion of proposed
Sec. 106.46(d)). In addition, the Department would add proposed Sec.
106.45(d)(1)(iv), which would permit but not require a recipient to
dismiss a complaint of sex discrimination or some of its allegations
when, after making reasonable efforts to clarify the allegations with
the complainant, the recipient determines that the conduct alleged,
even if proven, would not constitute sex discrimination under Title IX.
The Department also proposes removing the requirement that a recipient
dismiss a complaint when the conduct alleged did not occur in the
recipient's education program or activity or against a person in the
United States. In addition, the Department proposes removing language
from current Sec. 106.45(b)(3)(i) that a dismissal under that
paragraph does not preclude action under another provision of the
recipient's code of conduct. Finally, the Department proposes
eliminating from current Sec. 106.45(b)(3)(ii) the provision that
permits a recipient to dismiss a complaint when ``specific
circumstances'' prevent the recipient from gathering evidence
sufficient to reach a determination as to the formal complaint or
allegations therein.
The Department proposes clarifying in Sec. 106.45(d)(2) that upon
dismissal, a recipient must promptly notify the complainant of the
dismissal and the reasons for it, and, if a respondent has already been
notified of the allegations, then the recipient must also notify the
respondent of the dismissal and the basis for the dismissal promptly
following notification to the
[[Page 41475]]
complainant, or simultaneously if notification is in writing. The
Department also proposes incorporating current Sec. 106.45(b)(8),
which grants parties a right to appeal dismissals, into proposed Sec.
106.45(d)(3). Proposed Sec. 106.45(d)(3) would provide that when a
complaint is dismissed, the recipient must notify all parties that a
dismissal may be appealed, and in an appeal of a complaint dismissal, a
recipient must: (i) notify the parties when an appeal is filed and
implement appeal procedures equally for the parties; (ii) ensure that
the decisionmaker for the appeal did not take part in an investigation
of the allegations or dismissal of the complaint; (iii) ensure that the
decisionmaker for the appeal has been trained as set out in proposed
Sec. 106.8(d)(2); (iv) provide the parties a reasonable and equivalent
opportunity to make a statement in support of, or challenging, the
outcome; and (v) notify all parties of the result of the appeal and the
rationale for the result. For additional requirements regarding the
application of this provision in grievance procedures for sex-based
harassment complaints involving postsecondary students, see the
discussion of proposed Sec. 106.46(d).
Reasons: Eliminating mandatory dismissals and permitting dismissals
in certain circumstances. To ensure a nondiscriminatory educational
environment as required by Title IX, OCR has long interpreted Title IX
to require that a recipient must respond to notice of possible sexual
harassment by determining what occurred and resolving any sexual
harassment. Prior to 2020, the Department had not addressed whether a
recipient could dismiss complaints of sexual harassment (i.e., decline
to investigate or decline to complete an investigation) and if so,
under what circumstances. Section 106.45(b)(3) of the 2020 amendments
includes a mandatory dismissal provision, which requires an initial
assessment of whether alleged conduct constitutes sexual harassment in
a recipient's education program or activity. 85 FR 30289. Since the
2020 amendments went into effect, however, OCR has received feedback
objecting to Sec. 106.45(b)(3)(i), including from recipients, through
the June 2021 Title IX Public Hearing and numerous listening sessions
with stakeholders, and the Department received additional feedback in
2022 meetings held under Executive Order 12866. Some stakeholders
expressed concern that requiring the dismissal of complaints without
completing an investigation deprives a recipient of the opportunity to
afford students the full protections of Title IX's nondiscrimination
mandate. Others raised practical concerns, including concerns about the
timing of such dismissals, asking how a recipient can effectively judge
at the outset whether an allegation meets the definition of sexual
harassment, noting that such a rule creates uncertainty for all parties
and exposes a recipient to potential liability if either party
challenges the dismissal.
The Department's current view is that a recipient should not be
required to determine whether the conduct alleged meets the definition
of sex discrimination at the outset of a complaint. Based on the
feedback described, the Department recognizes that in most cases, it
will not be clear whether alleged conduct could constitute sex
discrimination under Title IX and, therefore, a recipient would be
required to take additional steps to comply with its obligation under
Title IX to have its education program or activity free from sex
discrimination. In these cases, the proposed grievance procedures would
guide the recipient's investigation and determination to ensure that
both are prompt and equitable. The Department recognizes, however, that
making such a determination may be appropriate in a limited set of
circumstances, when it is clear from the allegations alone that the
conduct alleged, even if proven, would not constitute sex
discrimination under Title IX. In those cases, the Department's current
view is that a recipient should have the discretion to dismiss the
complaint and avoid conducting an unnecessary investigation.
Having reconsidered the issues in light of the facts and
circumstances, including but not limited to stakeholder concerns, the
Department proposes amending Sec. 106.45(b)(3) to permit but not
require a recipient to dismiss a complaint for any of the following
reasons: (i) the recipient is unable to identify the respondent after
taking reasonable steps to do so (proposed Sec. 106.45(d)(1)(i)); (ii)
the respondent is not participating in the recipient's education
program or activity and is not employed by the recipient (proposed
Sec. 106.45(d)(1)(ii)); (iii) the complainant voluntarily withdraws
any or all of the allegations in the complaint and the recipient
determines that without the complainant's withdrawn allegations, the
conduct that remains in the complaint, even if proven, would not
constitute sex discrimination under Title IX (proposed Sec.
106.45(d)(1)(iii)); and (iv) the recipient determines the conduct
alleged in the complaint, even if proven, would not constitute sex
discrimination under Title IX (proposed Sec. 106.45(d)(1)(iv)).
The Department recognizes that for many sex discrimination
complaints, there will not be a ``respondent'' as that term is
understood in the context of sex-based harassment complaints; rather,
the claim will be that the school's policies or practices deprived
students of an equal educational opportunity based on sex in violation
of Title IX. In such cases, a recipient would still be able to dismiss
a complaint based on one of the two dismissal bases that are not tied
to a particular respondent: proposed Sec. 106.45(d)(1)(iii), when the
complainant withdraws some or all of the allegations of the complaint
and the remaining allegations, even if true, would not constitute sex
discrimination under Title IX; and proposed Sec. 106.45(d)(1)(iv),
when the conduct alleged in the complaint, even if proven, would not
constitute sex discrimination under Title IX.
Proposed Sec. 106.45(d)(4) would further require a recipient that
dismisses a complaint to comply with the requirements of proposed Sec.
106.44(f) and (g) by, at a minimum: (1) offering supportive measures to
the complainant as appropriate under proposed Sec. 106.44(g); (2)
offering supportive measures to the respondent as appropriate under
proposed Sec. 106.44(g) for dismissals under Sec. 106.45(d)(1)(iii)
or (iv) in which the respondent has been notified of the allegations;
and (3) require its Title IX Coordinator to take other appropriate
prompt and effective steps to ensure that sex discrimination related to
any of the allegations or information contained in the complaint does
not continue or recur within the recipient's education program or
activity under proposed Sec. 106.44(f). These steps are necessary
because dismissal of a complaint of sex discrimination occurs before a
recipient determines whether sex discrimination occurred. Therefore,
although a recipient would not be required to comply with the
requirements of its sex discrimination grievance procedures after
dismissing a complaint, it would nevertheless be required to take steps
to ensure that the complainant and respondent are offered supportive
measures as appropriate and that its education program or activity
operates free from sex discrimination.
Finally, the Department proposes deleting the statement that a
dismissal under current Sec. 106.45(b)(3)(i) does not preclude action
under another provision of the recipient's code of conduct. The
preamble to the 2020 amendments explained that this statement was
[[Page 41476]]
included in response to concerns raised by commenters that a recipient
would no longer be able to use its own grievance procedures to
investigate and resolve allegations that did not meet the current
regulations' definition of ``sexual harassment.'' 85 FR 30288. This
provision would no longer be necessary because proposed Sec. 106.45(d)
would not require a recipient to dismiss allegations. This change would
address recipients' concerns that the 2020 amendments excluded from the
grievance procedures conduct that should be within their scope.
Moreover, although the Department does not consider it necessary to
refer to the other tools a recipient may employ to address alleged
misconduct, a recipient has always been and would continue to be free
to use other available procedures, and nothing in proposed Sec.
106.45(d) would preclude a recipient from doing so.
When the recipient is unable to identify the respondent. The
Department proposes amending current Sec. 106.45(b)(3) to permit a
recipient to dismiss a complaint when, after taking reasonable steps to
identify the respondent, the recipient is unable to do so. Reasonable
steps may include but are not limited to interviewing the complainant,
interviewing potential witnesses, and reviewing contemporaneous records
such as video footage and visitor logs if relevant. The Department's
position is that it is appropriate to allow such dismissals at a
recipient's discretion when reasonable efforts to identify the
respondent are not successful.
In deciding whether dismissal may be appropriate when the
respondent is unknown, a recipient should consider whether there are
good reasons to proceed with grievance procedures without a respondent.
In some cases, the specific steps set out in proposed Sec. 106.45 will
not be effective without a respondent. Although proposed Sec.
106.45(d)(1)(i) allows a recipient to dismiss a complaint for which a
respondent cannot be identified, a recipient that chooses to do so must
nevertheless comply with the requirements of proposed Sec. 106.44(f)
and (g) by offering supportive measures and requiring its Title IX
Coordinator to take other appropriate prompt and effective steps to
ensure that sex discrimination does not continue or recur within the
recipient's education program or activity (proposed Sec.
106.45(d)(4)).
In cases in which a recipient identifies a respondent after
dismissing a complaint, either while taking necessary steps under
proposed Sec. 106.44(f) to ensure equal access to its education
program or activity or through other means, it would be permitted to
reinstate a dismissed complaint and complete its grievance procedures
at that time. A recipient would not need to reinstate its grievance
procedures in every case. Factors a recipient may consider in deciding
whether to reinstate its grievance procedures would include but are not
limited to whether the complainant or the respondent still participates
or is attempting to participate in the recipient's education program or
activity, whether the alleged conduct has been addressed fully through
the other steps taken under proposed Sec. 106.44(f) and (g), and
whether there is a risk of continued sex discrimination or a concern
regarding safety of the broader community.
When the respondent is not participating in the recipient's
education program or activity and is not employed by the recipient. The
Department proposes clarifying in Sec. 106.45(d)(1)(ii) that a
recipient may dismiss a complaint when the respondent is not
participating in the recipient's education program or activity and is
not employed by the recipient. In such circumstances, proposed Sec.
106.45(d)(4) would require the recipient to comply with the
requirements of proposed Sec. 106.44(f) and (g) by offering the
complainant supportive measures and requiring its Title IX Coordinator
to take other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity.
The current regulations permit dismissal when a respondent is no
longer enrolled in or employed by the recipient. The proposed
modification--changing the term ``enrolled in'' to the term
``participating in''--would recognize that some student respondents may
continue to participate in a recipient's education program or activity
even though they are not enrolled and that their participation could
affect the complainant's access to the recipient's education program or
activity. Such continued participation could include serving in an
alumni organization, as a volunteer, or attending school-related
events. In addition, a student who is on an approved leave from a
postsecondary institution typically plans to return to the campus
community and thus remains part of, and therefore a participant in, the
recipient's education program or activity, even if from a distance. A
recipient would have the discretion to restrict such an individual's
ability to continue participating in its education program or activity,
either under proposed Sec. 106.44(g) as a supportive measure to the
extent necessary to restore or preserve the complainant's equal access
to its education program or activity, or under proposed Sec. 106.45,
and if applicable proposed Sec. 106.46, as a disciplinary action at
the conclusion of its grievance procedures. Finally, proposed Sec.
106.45(d)(1)(ii) would encompass complaints against a respondent who
was never enrolled in or employed by a recipient, and permits dismissal
of those complaints as well. As explained in the discussion of the
proposed definition of a ``respondent'' (Sec. 106.2), a third party
may be a respondent to a complaint of sex discrimination.
By proposing to permit a recipient to dismiss a complaint of sex
discrimination because the respondent is not a student or an employee
of the institution or is a former student or employee, the Department
does not suggest that a recipient lacks an obligation under Title IX to
address sex discrimination by such respondents. Rather, consistent with
the Department's explanation in the preamble to the 2020 amendments, a
recipient must respond to notice of sexual harassment in its education
program or activity ``regardless of whether the complainant or
respondent is an enrolled student or an employee of the recipient.''
See 85 FR 30488. As explained in greater detail in the discussion of
proposed Sec. 106.44(a), the proposed regulations would affirm a
recipient's obligation to take action to end any sex discrimination
that has occurred in its education program or activity, even by third
parties.
Dismissal of a Title IX complaint against a third-party respondent
or a respondent who is a former student or former employee is
nevertheless permitted when, for example, a recipient determines that
its lack of control over the respondent or other factors would prevent
it from completing its grievance procedures. In such cases, proposed
Sec. 106.45(d)(4)) would apply. Under the proposed regulations, the
recipient would be required, at a minimum, to comply with the
requirements of proposed Sec. 106.44(f) and (g) by offering the
complainant supportive measures and requiring its Title IX Coordinator
to take other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity. In some cases, ensuring equal
[[Page 41477]]
access may warrant noting in a student's academic records that the
student withdrew with a disciplinary action pending and is ineligible
to re-enroll without reinstatement of the grievance procedures, or
noting in a former employee's personnel file that the employee is
ineligible for rehire pending completion of the grievance procedures.
In other cases, to ensure equal access to its education program or
activity for the complainant, a recipient may need to impose
restrictions on a respondent who has no relationship to the recipient,
such as barring the respondent from accessing the recipient's
facilities or participating in activities that are otherwise open to
members of the public.
When the complainant voluntarily withdraws any or all of the
allegations in the complaint. The Department proposes maintaining
current Sec. 106.45(b)(3)(ii), which permits a recipient to dismiss a
complaint or any of the allegations raised in a complaint upon request
of the complainant. The Department proposes revising this dismissal
basis in proposed Sec. 106.45(d)(1)(iii) to clarify that such
dismissals are permitted when the complainant voluntarily withdraws any
or all of the allegations in the complaint. Requiring a recipient to
determine that the complainant's withdrawal is voluntary would guard
against situations in which a complainant is coerced or pressured to
withdraw a complaint but does not do so voluntarily or knowingly. For
recipients and complaints subject only to the Title IX grievance
procedures in proposed Sec. 106.45, the Department proposes
eliminating the requirement that a complainant request dismissal of a
complaint or complaint allegations in writing to the Title IX
Coordinator, although a complainant is not precluded from making a
request in that manner. The Department recognizes that through
discussions between a complainant and a Title IX Coordinator or others
during the course of grievance procedures, a complainant may withdraw
some or all complaint allegations. As explained in the discussion of
the proposed definition of a ``complaint'' (Sec. 106.2), which the
Department proposes would not have to be made in writing, OCR heard
from stakeholders during the June 2021 Title IX Public Hearing that
requirements from the 2020 amendments that a formal complaint be
written and indicate that the complainant is the person filing, such as
by including the complainant's physical or digital signature, created
an unnecessarily burdensome process and discouraged some individuals
from making complaints. Based on the information received from
stakeholders and after reconsidering the issue, the Department's
current position is that requiring a written withdrawal request for
purposes of complying with Title IX may be overly prescriptive and
impose unnecessary requirements on complainants and recipients in those
circumstances and possibly imposes unnecessary burdens on respondents
(except in postsecondary complaints of sex-based harassment involving a
student party, which is explained in greater detail in the discussion
of proposed Sec. 106.46(d)(1)).
In cases in which a complainant withdraws some or all of the
allegations and informs the recipient that they do not want an
investigation to proceed, the Department's current view is that a
recipient should override a student's request that an investigation not
proceed only in limited instances in which the recipient determines
that the potential harm from ongoing sex discrimination outweighs the
complainant's interest in not initiating the grievance procedures,
including consideration of any potential harms the complainant
identifies that may follow from initiation of the recipient's grievance
procedures. This position is reflected in the preamble to the 2020
amendments, which noted that a Title IX Coordinator might initiate a
grievance process when a complainant chooses not to file a formal
complaint to prevent a respondent from continuing to engage in sexual
harassment. 85 FR 30131. Consistent with OCR's longstanding position
regarding when a recipient should override a complainant's request for
confidentiality or not take action in response to a report of sexual
harassment, the recipient must, prior to dismissing a complaint
withdrawn by a complainant, determine whether it can honor such a
request and still provide a safe and nondiscriminatory environment for
all students. See, e.g., 2014 Q&A on Sexual Violence at 20; see also
2001 Revised Sexual Harassment Guidance at 17 (a recipient should honor
a complainant's request for confidentiality ``as long as doing so does
not prevent the school from responding effectively to the harassment
and preventing harassment of other students'').
In addition, the Department proposes including a safeguard in Sec.
106.45(d)(1)(iii)--that the recipient may dismiss the complaint only if
it determines that without the withdrawn allegations, the conduct
alleged in the complaint would not constitute sex discrimination under
Title IX if proven--to balance a complainant's request not to proceed
with a complaint of sex discrimination against a recipient's obligation
to ensure its education program or activity operates free from sex
discrimination. In some cases, a complainant's withdrawal of
allegations would leave no remaining allegations for a recipient to
address through its grievance procedures. Dismissal would then be
permitted under proposed Sec. 106.45(d)(1)(iii). In other cases in
which a complainant withdraws some or all of the allegations in a
complaint, there may be remaining allegations that would independently
constitute sex discrimination under Title IX. This might occur in a
complaint that involves multiple complainants, allegations against
several respondents, or alleged discrimination that occurred on more
than one occasion. Before dismissing the complaint under proposed Sec.
106.45(d)(1)(iii), the recipient must consider whether other factors,
including its obligation to afford equal access to its education
program or activity, warrant initiating grievance procedures. In making
this determination, a recipient may consider the seriousness of the sex
discrimination, whether circumstances suggest an increased risk of
additional acts of sex discrimination by the respondent or others, and
whether the recipient has other means to obtain relevant evidence to
determine whether sex discrimination occurred. These considerations may
similarly guide a Title IX Coordinator in determining whether to
initiate sex discrimination grievance procedures in response to
information about conduct that may constitute sex discrimination under
Title IX but where there is no complaint or the complainant requests
that the grievance procedures not be initiated, as explained in the
discussion of proposed Sec. 106.44(f)(5). Proposed Sec.
106.45(d)(1)(iii) would leave to the discretion of the recipient to
determine whether any alleged conduct that remains could, if proven,
constitute sex discrimination under Title IX.
Dismissal of allegations involving conduct that if proven would not
constitute sex discrimination under Title IX. Proposed Sec.
106.45(d)(1)(iv) would permit, but not require, a recipient to dismiss
a complaint when, prior to completing its grievance procedures, the
recipient determines that the conduct alleged would not constitute sex
discrimination under Title IX even if proven. The procedures in
proposed Sec. 106.45 are designed to
[[Page 41478]]
elicit sufficient information to enable a recipient to make an informed
decision as to whether sex discrimination occurred. Prohibiting a
recipient from continuing its grievance procedures, as the mandatory
dismissal provision of the current 2020 amendments does, may require a
recipient to make a hasty judgment call at the outset of the complaint
about whether the allegations, if proven, would constitute sex
discrimination under Title IX. However, in the early stages of the
complaint process, gathering more information may help to confirm
whether the allegations, if true, would amount to sex discrimination.
For instance, in cases of sex-based harassment in which one or more of
the parties may have been incapacitated during the alleged incident, a
recipient may gain additional information to establish what occurred
through witness interviews conducted as part of its investigation under
its grievance procedures. In other cases, a complainant may report an
allegation of sex-based harassment but lack information about severity
or pervasiveness, for example, that a recipient might receive through
evidence gathering under its grievance procedures. Requiring dismissal
of all such complaints would prevent a recipient from using its
grievance procedures to address possible sex-based harassment in its
education program or activity. The Department recognized this in the
preamble to the 2020 amendments when, in response to comments, the
Department declined to permit dismissal of ``frivolous complaints''
because ``the point of the Sec. 106.45 grievance process is to require
the recipient to gather and objectively evaluate relevant evidence
before reaching conclusions about the merits of the allegations.'' 85
FR 30290.
The Department proposes revising the regulations to ensure it is
clear that a recipient has the discretion to dismiss allegations that,
if proven, would establish that the alleged conduct was not based on
sex or did not subject a person to sex discrimination in a recipient's
education program or activity in the United States, as set out in
proposed Sec. 106.11. Proposed Sec. 106.45(d)(1)(iv) would require a
recipient to make reasonable efforts to clarify the allegations with
the complainant prior to dismissal. In cases of sex-based harassment,
this would require a recipient to clarify with the complainant, when
relevant, whether the complainant is experiencing a hostile environment
within the recipient's education program or activity in the United
States stemming from conduct that occurred outside the education
program or activity or outside the United States. Although a recipient
has discretion under proposed Sec. 106.45(d)(1)(iv) to distinguish
between allegations that implicate Title IX and those that do not, the
Department reiterates that a recipient must not exercise its discretion
in a manner that predetermines witness credibility or the sufficiency
of evidence nor would the recipient be permitted to dismiss complaints
to avoid a complicated or contested investigation.
Specific circumstances. The Department proposes removing language
from Sec. 106.45(b)(3)(ii) that permits a recipient to dismiss a
complaint when specific circumstances prevent the recipient from
gathering evidence sufficient to reach a determination as to the formal
complaint or allegations therein. In the preamble to the 2020
amendments, the Department explained that this provision ``is intended
to apply narrowly to situations where specific circumstances prevent
the recipient from meeting its burden in Sec. 106.45(b)(5)(i) to
gather sufficient evidence to reach a determination.'' Id. The 2020
amendments did not define ``specific circumstances,'' but the preamble
included examples of the types of specific circumstances that might
warrant dismissal, including when the passage of time between alleged
sex-based harassment and the filing of a formal complaint ``prevent a
recipient from collecting enough evidence to reach a determination,''
id. at 30214, and ``[w]hen a formal complaint contains the allegations
that are precisely the same as allegations the recipient has already
investigated and adjudicated,'' id. at 30214 n.939.
The Department's current view is that allowing a recipient to
dismiss a complaint for undefined ``specific circumstances'' is
unnecessary in light of other, specific dismissal provisions. The
Department is also concerned that this undefined category is
potentially so broad that it fails to provide adequate guidance to
recipients about when it applies. To address the first example from the
preamble to the 2020 amendments, the passage of time between alleged
sex discrimination and when a complaint is made does not always mean a
recipient will be unable to collect enough evidence to reach a
determination. Under the proposed regulations, the ``specific
circumstances'' provision would not be necessary because a recipient
would have two other avenues for resolving complaints in this
circumstance: (1) It would be able to dismiss the complaint under
proposed Sec. 106.45(d)(1)(iv) if the allegations in the complaint--
once clarified with the complainant--could not constitute sex
discrimination under Title IX; or (2) It could conduct an
investigation, evaluate the available evidence it has been able to
gather (if any) for its persuasiveness, and, if appropriate, determine
that sex discrimination did not occur. As for the second example from
the preamble to the 2020 amendments, if a complainant were to make a
complaint with only specific allegations that the recipient had already
investigated, the recipient could notify the complainant that the
allegations have already been resolved and either (1) decline to open a
new complaint, or (2) dismiss the complaint if it had been opened
before the recipient realized that the allegations duplicate those
previously investigated. Considering the discussion above, the
Department's current view is that allowing specific circumstances to
serve as a basis for dismissal without defining what constitutes
specific circumstances does not adequately apprise a recipient of the
circumstances that would permit dismissal and those circumstances--such
as a complicated, resource intensive investigation--that would not.
Rather than retain the term ``specific circumstances'' as a vague,
catchall basis for dismissing complaints, the Department proposes
eliminating that provision and revising Sec. 106.45(b)(3) to include
several defined bases for discretionary dismissal.
Notification of Dismissal. Proposed Sec. 106.45(d)(2) would
clarify that upon dismissal, a recipient must promptly notify the
complainant of the dismissal and the basis for the dismissal, and, if a
respondent has already been notified of the allegations, then the
recipient must also notify the respondent of the dismissal and the
basis for it promptly following notification to the complainant, or
simultaneously if notification is in writing. The Department proposes
requiring that notice of a complaint dismissal be in writing only for
postsecondary recipients for sex-based harassment complaints involving
a student complainant or student respondent (see proposed Sec.
106.46(d)(2)), but nothing in the proposed regulations would preclude
other recipients or postsecondary recipients in other circumstances
from providing notice of a dismissal to the parties in writing.
Appeal of Dismissal. In addition, proposed Sec. 106.45(d)(3) would
incorporate current Sec. 106.45(b)(8), which grants parties a right to
appeal dismissals. The provision at proposed
[[Page 41479]]
Sec. 106.45(d)(3) would require a recipient to notify all parties that
a dismissal may be appealed; provide any party with an opportunity to
appeal; notify the other party when an appeal is filed; and implement
appeal procedures equally for the parties. This right to appeal would
further require robust protections such as training for appeal
decisionmakers on how to serve impartially, including by avoiding bias,
conflicts of interest, and prejudgment of the facts at issue; strict
separation of the appeal decisionmakers from those who investigated and
adjudicated the underlying complaint to reinforce independence and
neutrality; and a reasonable, equivalent opportunity for the parties to
participate in the appeal process. Finally, the recipient must notify
all parties of the result of the appeal and the rationale for the
result.
Section 106.45(e) Consolidation of Complaints
Current regulations: Section 106.45(b)(4) permits a recipient to
consolidate formal complaints involving allegations of sexual
harassment against more than one respondent, or by more than one
complainant against one or more respondents, or by one party against
the other party, when the sexual harassment allegations arise out of
the same facts or circumstances. The preamble to the 2020 amendments
clarified that complaints ``by one party against the other party''
refers to counter-complaints. 85 FR 30291. Section 106.45(b)(4) also
states that when ``a grievance process involves more than one
complainant or more than one respondent, references in this section to
the singular `party,' `complainant,' or `respondent' include the
plural, as applicable.''
Proposed regulations: The Department proposes retaining the
language of Sec. 106.45(b)(4) as it appears in the current
regulations, with one substantive change and four minor changes for
consistency with changes in other provisions of the proposed
regulations. The Department also proposes moving this provision to
proposed Sec. 106.45(e). Proposed Sec. 106.45(e) would allow a
recipient to consolidate complaints of sex discrimination against more
than one respondent, or by more than one complainant against one or
more respondents, or by one party against another party (i.e., when a
respondent seeks to pursue a counter-complaint against a complainant),
when the allegations of sex discrimination arise out of the same facts
or circumstances. If one of the complaints to be consolidated is a
complaint of sex-based harassment involving a student complainant or
student respondent at a postsecondary institution, proposed Sec.
106.45(e) would clarify that the grievance procedures for investigating
and resolving the consolidated complaint must comply with the
requirements of proposed Sec. Sec. 106.45 and 106.46.
In addition, the Department proposes replacing references to
``formal complaints'' with ``complaints,'' and replacing references to
``sexual harassment'' with ``sex discrimination'' and ``sex-based
harassment,'' as applicable. The Department proposes replacing the
phrase ``the other party'' with ``another party'' to reflect that
certain complaints might involve more than two parties. The Department
also proposes removing the reference to the ``grievance process.''
Consistent with current Sec. 106.45(b)(4), proposed Sec.
106.45(e) would state that when more than one complainant or more than
one respondent is involved, references in this section and in proposed
Sec. 106.46 to the singular form of the terms ``party,''
``complainant,'' or ``respondent'' include the plural, as applicable.
Reasons: The Department proposes maintaining a recipient's ability
to consolidate complaints against more than one respondent, or by more
than one complainant against one or more respondents, or by one party
against another party, when the allegations arise out of the same facts
or circumstances. In order to align this provision with proposed Sec.
106.45, which addresses grievance procedures for any complaint of sex
discrimination, not just sex-based harassment, the Department proposes
modifying the scope of consolidation under proposed Sec. 106.45(e) to
allow a recipient to consolidate any complaint of sex discrimination
with another complaint of sex discrimination as long as the allegations
of sex discrimination arise out of the same facts or circumstances.
Current Sec. 106.45(b)(4) limits consolidation to complaints of sexual
harassment and does not address whether consolidation is available for
other forms of sex discrimination such as consolidation of complaints
involving retaliation related to complaints of sex-based harassment.
For example, if a person alleges that they were retaliated against
for making a complaint of sex-based harassment or otherwise exercising
their rights under Title IX related to sex-based harassment, the
retaliation complaint may involve the same parties as a complaint
related to the underlying sex-based harassment. Accordingly, when the
sex-based harassment and related retaliation allegations arise out of
the same facts or circumstances (and when the complaints are against
more than one respondent, or by more than one complainant against one
or more respondents, or by one party against the other party), proposed
Sec. 106.45(e) would permit a recipient to consolidate these
complaints.
Proposed Sec. 106.45(e) would require that when one of the
complaints to be consolidated is a complaint of sex-based harassment
involving a student complainant or student respondent at a
postsecondary institution, the recipient must comply with the
requirements of proposed Sec. Sec. 106.45 and 106.46 to investigate
and resolve the consolidated complaint. Proposed Sec. 106.71 likewise
would require that when a complaint of retaliation is consolidated with
a complaint of sex-based harassment involving a student at a
postsecondary institution, the recipient must comply with the grievance
procedures in proposed Sec. Sec. 106.45 and Sec. 106.46. As explained
in the discussion of proposed Sec. 106.46 (Section II.F.2.c), the
Department's current view is that the additional provisions of proposed
Sec. 106.46 would address the specialized needs of postsecondary
student complainants and respondents in complaints of sex-based
harassment and, when applied together with the requirements in proposed
Sec. 106.45, would ensure equitable grievance procedures tailored to
the circumstances of students attending postsecondary institutions. For
this reason, when a consolidated complaint involves a complaint of sex-
based harassment involving a student at a postsecondary institution,
the Department proposes that the postsecondary institution would be
required to comply with these additional requirements.
In addition to clarifying that consolidation is available for any
complaint of sex discrimination, the Department proposes minimal
changes to proposed Sec. 106.45(e) to align with global changes in the
proposed regulations.
First, the Department proposes replacing ``formal complaints'' with
``complaints.'' As explained in the discussion of the proposed
definition of ``complaint'' (Sec. 106.2), the Department proposes
removing the formal complaint requirement for purposes of initiating a
recipient's obligation to follow its grievance procedures for
complaints of sex discrimination as described in proposed Sec. Sec.
106.45 and 106.46.
Second, the Department proposes replacing the term ``sexual
harassment'' with the term ``sex discrimination'' or ``sex-based
harassment,'' as applicable.
[[Page 41480]]
As explained in greater detail in the discussion of the Overall
Considerations and Framework (Section II.F.2.a) and the proposed
definition of ``sex-based harassment'' (Sec. 106.2), the Department
proposes these changes to make clear that all forms of sex
discrimination and all forms of harassment based on sex are within the
scope of the grievance procedures described in proposed Sec. Sec.
106.45 and 106.46 to dispel any confusion regarding the scope of Title
IX's coverage of harassment.
Third, the Department proposes to replace the phrase ``the other
party'' with ``another party'' because complaints might involve more
than two parties.
Finally, the Department proposes removing the reference to the
``grievance process'' because the proposed regulations instead use the
term ``grievance procedures'' to refer to the procedures outlined in
proposed Sec. Sec. 106.45 and 106.46.
Section 106.45(f)(1) Investigative Burden on Recipients
Current regulations: Section 106.45(b)(5)(i) requires a recipient
to ensure that both the burden of proof and the burden of gathering
evidence sufficient to reach a responsibility determination rest on the
recipient and not on the parties. This provision prohibits a recipient
from accessing, considering, disclosing, or using a party's records
that are made or maintained by a physician, psychiatrist, psychologist,
or other recognized professional or paraprofessional acting in the
professional's or paraprofessional's capacity, or assisting in that
capacity, and which are made and maintained in connection with the
provision of treatment to the party--unless the party provides
voluntary, written consent to the recipient for use in the grievance
process. If the party is not an ``eligible student,'' as defined in 34
CFR 99.3, the recipient must obtain the voluntary, written consent of a
``parent,'' as defined in 34 CFR 99.3.\7\
---------------------------------------------------------------------------
\7\ Under Sec. 99.3 of the regulations implementing the FERPA
set out at 34 CFR part 99, an ``[e]ligible student means a student
who has reached 18 years of age or is attending an institution of
postsecondary education,'' and a ``[p]arent means a parent of a
student and includes a natural parent, a guardian, or an individual
acting as a parent in the absence of a parent or a guardian.''
---------------------------------------------------------------------------
Proposed regulations: Proposed Sec. 106.45(f)(1) would require
that the recipient--and not the parties--bear the burden of conducting
an investigation that gathers sufficient evidence to determine whether
sex discrimination occurred.
The Department proposes retaining the prohibition in current Sec.
106.45(b)(5)(i) that a recipient may not access, consider, disclose, or
otherwise use a party's treatment records, but would move this language
to proposed Sec. 106.45(b)(7) with technical edits.
Reasons: Proposed Sec. 106.45(f)(1) would retain the language in
the current provision requiring that the recipient--and not the
parties--bear the burden of gathering sufficient evidence to reach a
determination. The Department proposes replacing the phrase
``determination of responsibility'' with the phrase ``determine whether
sex discrimination occurred.'' The Department proposes substituting
this language consistent with the language used in other provisions in
the proposed regulations and to provide clarity about the type of
determination involved.
Current Sec. 106.45(b)(5)(i) prohibits a recipient from accessing,
considering, disclosing, or using a party's treatment records, unless
the party consents to their use. The Department proposes moving the
full description of this prohibition, with minor proposed revisions, to
proposed Sec. 106.45(b)(7), where all three categories of
impermissible evidence are described in full. As outlined by the
Department in the discussion of proposed Sec. 106.45(b)(7), the
Department proposes consolidating this prohibition with other forms of
impermissible evidence for ease of reference and to make clear to
recipients and others that these types of evidence would be excluded
from the general requirement that the recipient conduct an objective
evaluation of all relevant evidence. The Department explains the
proposed changes to the protection of treatment records in greater
detail in the discussion of proposed Sec. 106.45(b)(7).
Section 106.45(f)(2) Opportunity To Present Relevant Witnesses and
Other Evidence
Current regulations: Section 106.45(b)(5)(ii) requires a recipient
to provide an equal opportunity for the parties to present witnesses,
including fact and expert witnesses, and to present other inculpatory
and exculpatory evidence.
Proposed regulations: Proposed Sec. 106.45(f)(2) would require a
recipient to provide an equal opportunity for the parties to present
relevant fact witnesses, as well as other inculpatory and exculpatory
evidence.
Reasons: Proposed Sec. 106.45(f)(2) would retain the requirement
that a recipient provide an equal opportunity for the parties to
present fact witnesses and other inculpatory and exculpatory evidence,
and would clarify that the fact witnesses and evidence must be
``relevant'' as defined in proposed Sec. 106.2. The topic of expert
witnesses in grievance procedures resolving complaints of sex-based
harassment involving students at the postsecondary level would now
appear in proposed Sec. 106.46(e)(4).
The proposed relevance limitation on the opportunity to produce
witnesses and other evidence is consistent with the numerous provisions
in the current and proposed regulations that limit the evidence in the
grievance procedures to evidence that is ``relevant,'' as defined in
proposed Sec. 106.2. The current regulations incorporate the concept
of relevance into several provisions, specifically:
Sec. 106.45(b)(1)(ii) (objective evaluation of all
relevant evidence);
Sec. 106.45(b)(1)(iii) (training on issues of relevance);
Sec. 106.45(b)(5)(iii) (no restriction on the ability of
either party to gather and present relevant evidence);
Sec. 106.45(b)(5)(vii) (investigative report that fairly
summarizes relevant evidence);
Sec. 106.45(b)(6)(i) (ability of the party's advisor to
ask all relevant questions and follow-up questions, and only relevant
cross-examination and other questions may be asked of a party or
witness);
Sec. 106.45(b)(6)(ii) (opportunity to submit written,
relevant questions to the other party); and
Sec. 106.45(b)(6)(i) and (ii) (decisionmaker must exclude
oral or written questions that are not relevant and explain any
decision to exclude a question as not relevant).
Similarly, in proposed Sec. Sec. 106.45 and 106.46, relevance is
discussed in:
Section 106.45(b)(6) (objective evaluation of all relevant
evidence);
Section 106.45(f)(2) (equal opportunity for parties to
present relevant fact witnesses and other evidence);
Section 106.45(f)(3) (review of evidence gathered to
determine relevance);
Section 106.45(f)(4) (description of the relevant
evidence);
Section 106.45(h)(1) (requirement that the decisionmaker
evaluate relevant evidence for persuasiveness);
Section 106.46(c)(2)(iii) (notice of the opportunity to
receive access to relevant evidence or to an investigative report that
accurately summarizes this evidence);
Section 106.46(e)(6) (provide either equitable access to
the relevant evidence or to the same written investigative report that
accurately summarizes this evidence);
[[Page 41481]]
Section 106.46(f)(1)(i) (credibility determinations
include allowing the decisionmaker to ask relevant questions and
allowing each party to propose relevant questions);
Section 106.46(f)(1)(ii) (ability of the party's advisor
to ask all relevant questions);
Section 106.46(f)(3) (decisionmaker must determine whether
a proposed question is relevant and explain any decision to exclude a
question as not relevant); and
Section 106.46(h)(1)(iii) (written determination must
contain an evaluation of relevant evidence).
The Department justified the requirement to provide an equal
opportunity to present witnesses and evidence in the preamble to the
2020 amendments as ``an important procedural right and protection for
both parties'' that ``will improve the reliability and legitimacy of
the outcomes recipients reach in Title IX sexual harassment grievance
processes.'' 85 FR 30293. In the preamble to the 2020 amendments, the
Department described this provision as referring to relevant witnesses
and evidence. See id. at 30283 (stating that information about the
allegations under investigation ``allows both parties to meaningfully
participate during the investigation, for example by gathering and
presenting inculpatory or exculpatory evidence (including fact and
expert witnesses) relevant to each allegation under investigation'').
The Department now proposes making this explicit in the proposed
regulations. Placing a relevance limitation on witnesses and evidence
would limit the potential harm and unnecessary or wasteful use of
recipients' and parties' resources caused by the introduction of
irrelevant testimony and evidence.
Under proposed Sec. 106.45(f)(2), a recipient would be required to
provide the parties with the opportunity to present fact witnesses and
other relevant evidence. Separately, under proposed Sec. 106.45(f)(3),
the recipient then would be required to evaluate whether the evidence
is relevant and not otherwise impermissible, consistent with proposed
Sec. Sec. 106.2 and 106.45(b)(7).
Although current Sec. 106.45(b)(5)(ii) requires a recipient to
provide an equal opportunity for the parties to present expert
witnesses, the Department proposes moving this requirement to proposed
Sec. 106.46(e)(4) and limiting its application to complaints of sex-
based harassment involving a student complainant or a student
respondent at a postsecondary institution. A recipient investigating
and resolving a complaint under proposed Sec. 106.45 would retain the
discretion to determine whether to allow the parties to present expert
witnesses. In making this determination, a recipient would be required
to comply with proposed Sec. 106.45(b)(1) and (f). A recipient would
need to apply the determination about whether to allow expert witnesses
equally to the parties, as part of the requirement to provide for
equitable procedures and for the adequate, reliable, and impartial
investigation and resolution of complaints. As explained in greater
detail in the discussion of proposed Sec. 106.46(e)(4), the use of
expert witnesses may introduce delays without adding a meaningful
benefit to the recipient's investigation and resolution of the case.
Section 106.45(f)(3) Review and Determination of Relevant Evidence
Current regulations: None.
Proposed regulations: Proposed Sec. 106.45(f)(3) would require a
recipient to review all evidence gathered through the investigation and
determine which evidence is relevant and which evidence is
impermissible regardless of relevance, consistent with proposed
Sec. Sec. 106.2 and 106.45(b)(7).
Reasons: The Department proposes clarifying in proposed Sec.
106.45(f)(3) that a recipient must review all evidence gathered
throughout the investigation. This provision would require the
recipient to determine which evidence is ``relevant,'' as defined in
proposed Sec. 106.2, and which evidence is impermissible regardless of
relevance, as set out in proposed Sec. 106.45(b)(7).
The current regulations, at Sec. 106.45(b)(1)(ii), state that a
recipient's grievance process must ``[r]equire an objective evaluation
of all relevant evidence.'' The proposed regulations would retain this
requirement for the recipient's grievance procedures at Sec.
106.45(b)(6). The Department proposes adding Sec. 106.45(f)(3) to make
clear that when investigating a complaint of sex discrimination and
throughout the process set out in the Sec. 106.45 grievance
procedures, a recipient must determine which evidence gathered through
the investigation is relevant and which is impermissible regardless of
relevance, consistent with proposed Sec. Sec. 106.2 and 106.45(b)(7).
Section 106.45(f)(4) Description of Evidence
Current regulations: Section 106.8(c) requires a recipient to adopt
and publish grievance procedures for the prompt and equitable
resolution of student and employee complaints alleging sex
discrimination and a grievance process for formal complaints of sexual
harassment under Sec. 106.45. Current Sec. 106.45(b)(5)(vi) provides
that for formal complaints of sexual harassment, a recipient must
provide the parties with an equal opportunity to review and respond to
evidence obtained during the investigation that is directly related to
the allegations raised in a formal complaint of sexual harassment.
Current Sec. 106.45(b)(5)(vi) contains additional requirements related
to reviewing evidence, which are explained in the discussion of
proposed Sec. 106.46(e)(6).
Proposed regulations: Proposed Sec. 106.45(f)(4) would require a
recipient, as part of its obligation to conduct an adequate, reliable,
and impartial investigation of sex discrimination complaints, to
provide each party with a description of the evidence that is relevant
to the allegations of sex discrimination and not otherwise
impermissible. Proposed Sec. 106.45(f)(4) would also require a
recipient to provide the parties with a reasonable opportunity to
respond to this description of evidence. For additional requirements
regarding the application of this provision in grievance procedures for
sex-based harassment complaints involving postsecondary students, see
the discussion of proposed Sec. 106.46(e)(6).
Reasons: The current regulations require a recipient to provide the
parties with the opportunity to inspect and review the evidence
directly related to the allegations in response to a formal complaint
of sexual harassment. The current regulations do not expressly require
a recipient to provide access to the evidence or a description of the
evidence for complaints of sex discrimination other than formal
complaints of sexual harassment.
Under proposed Sec. 106.45(f)(4), the Department proposes
requiring a recipient to, at minimum, provide the parties with a
description of the relevant evidence as part of the investigation of
all sex discrimination complaints. A recipient may provide this
description orally or in writing. Proposed Sec. 106.8(f)(1) would
require a recipient to maintain records documenting the process that
the recipient conducted under the grievance procedures under proposed
Sec. 106.45, and if applicable proposed Sec. 106.46, for each
complaint of sex discrimination. Accordingly, a recipient that provides
the parties with an oral description of the evidence to comply with
proposed Sec. 106.45(f)(4) would need to maintain a written record of
this description. Likewise, a recipient would need to maintain any
written
[[Page 41482]]
description of the evidence that it provides to the parties.
In addition, under proposed Sec. 106.45(f)(4), the Department
proposes requiring a recipient to provide the parties with a reasonable
opportunity to respond to the description of the evidence as part of
the investigation of the complaint.
For complaints of sex-based harassment involving a student
complainant or student respondent at a postsecondary institution, the
postsecondary institution would be required to comply with both
proposed Sec. Sec. 106.45(f)(4) and 106.46(e)(6). As explained in the
discussion of proposed Sec. 106.46(e)(6), a postsecondary institution
would be required to provide the parties with equitable access to the
relevant and not otherwise impermissible evidence, or to a written
investigative report that accurately summarizes this evidence. As
stated in proposed Sec. 106.46(e)(6)(iv), compliance with the
requirements of proposed Sec. 106.46(e)(6) would also satisfy the
requirements of proposed Sec. 106.45(f)(4).
In the preamble to the 2020 amendments, the Department stated that
the purpose of current Sec. 106.45(b)(5)(vi) is to enable the parties
to ``meaningfully prepare arguments based on the evidence that further
each party's view of the case, or present additional relevant facts and
witnesses that the decision-maker should objectively evaluate before
reaching a determination regarding responsibility, including the right
to contest the relevance of evidence.'' 85 FR 30303. The proposed
regulations would likewise provide the parties with sufficient
information about the relevant evidence to meaningfully prepare
arguments, contest the relevance of evidence, and present additional
evidence for consideration but would also enable recipients to more
effectively fulfill their obligations under Title IX by allowing them
to tailor the manner in which they present the relevant, permissible
evidence in light of the ages of the parties, severity of the alleged
conduct, volume of evidence, other case-specific factors, and factors
specific to the recipient's educational environment.
Numerous stakeholders, in listening sessions and the June 2021
Title IX Public Hearing, urged the Department to provide greater
discretion for elementary school and secondary school recipients. Many
stakeholders commented that they have found the current regulations to
be onerous, protracted, and unworkable in practice for elementary
school and secondary school recipients. It is the Department's
tentative view that proposed Sec. 106.45(f)(4) would streamline the
investigation process while ensuring that parties receive a description
of the relevant evidence so that they can have a meaningful opportunity
to be heard in response to the evidence under consideration by the
recipient. The Department observes that in Goss, the Supreme Court held
that students facing a temporary suspension are entitled to notice of
the charges against them and ``if [the student] denies them, an
explanation of the evidence the authorities have and an opportunity to
present [the student's] side of the story.'' 419 U.S. at 581. The
description of the relevant evidence that would be required by proposed
Sec. 106.45(f)(4) would satisfy Goss's requirement for an explanation
of the evidence.
Under proposed Sec. 106.45(i), a recipient may adopt additional
provisions as part of its grievance procedures as long as they are
applied equally to the parties. Accordingly, a recipient that would not
be required by proposed Sec. 106.46(e)(6) to provide access to the
relevant evidence or to an investigative report would nevertheless have
the discretion to do so.
Section 106.45(g) Evaluating Allegations and Assessing Credibility
Current regulations: Section 106.8(c) requires a recipient to adopt
and publish grievance procedures for the prompt and equitable
resolution of student and employee complaints alleging sex
discrimination and a grievance process for formal complaints of sexual
harassment under Sec. 106.45. Current Sec. 106.45(b)(6)(i) provides
that for formal complaints of sexual harassment, postsecondary
institutions must provide for a live hearing during which the
decisionmaker must permit each party's advisor to ask the other party
and any witnesses all relevant questions and follow-up questions,
including those challenging credibility.
Proposed regulations: The Department proposes adding Sec.
106.45(g), which would require a recipient to provide a process that
enables the decisionmaker to adequately assess the credibility of the
parties and witnesses to the extent credibility is both in dispute and
relevant to evaluating one or more allegations of sex discrimination.
For additional requirements regarding the application of this provision
in grievance procedures for sex-based harassment complaints involving
postsecondary students, see the discussion of proposed Sec. 106.46(f).
Reasons: The current regulations require that a recipient have a
process for assessing the credibility of the parties and witnesses to
formal complaints of sexual harassment but do not have a similar
requirement for other complaints of sex discrimination. The
Department's current position is that to the extent credibility is
relevant, as discussed in proposed Sec. 106.46(f), a process for
assessing credibility must be included in grievance procedures for
complaints of other forms of sex discrimination as well.
In view of this, proposed Sec. 106.45(g) would require a recipient
to have a process in place to assess the credibility of the parties and
witnesses, to the extent credibility is in dispute and relevant to
evaluating one or more allegations of sex discrimination. A recipient
would have the ability to structure this process in a way that is
consistent with its obligation to have an equitable process for all
parties and takes into account the recipient's administrative
structure, education community, and any applicable State or local legal
requirements. The Department notes the specific requirements for
assessing credibility in proposed Sec. 106.46(f) related to
questioning by the decisionmaker or cross-examination are limited to
complaints of sex-based harassment involving student complainants or
student respondents at postsecondary institutions and would not apply
under proposed Sec. 106.45(g). However, and consistent with the
discussion of proposed Sec. 106.46(g), if as a part of its process for
assessing credibility under proposed Sec. 106.45(g), a recipient
elects to include any of these additional provisions, including
conducting a live hearing with both parties present, the Department's
current view is that the recipient's grievance procedures would not be
equitable if either party requested to participate in the live hearing
in a separate room and the recipient denied the request. For additional
discussion of the distinction between provisions under proposed
Sec. Sec. 106.45 and 106.46, see the discussion of the Framework for
Grievance Procedures for Complaints of Sex Discrimination (Section
II.F). Under proposed Sec. 106.45(g) a recipient would be permitted to
incorporate the methods for assessing credibility that would be
required under proposed Sec. 106.46(f) or may choose to incorporate
other methods that the recipient believes are better suited to the
nature of the allegations and the recipient's educational environment
as long as they aid in fulfilling the recipient's obligation to provide
an education program or activity free from sex discrimination. In
situations in which
[[Page 41483]]
credibility is not in dispute or is not relevant to evaluating one or
more allegations of sex discrimination, a recipient would not be
required to implement its process required under proposed Sec.
106.45(g) for assessing credibility.
Section 106.45(h) Determination of Whether Sex Discrimination Has
Occurred
Current regulations: Section 106.45(b)(7) states that the
decisionmaker(s) cannot be the same person(s) as the Title IX
Coordinator or the investigator(s), and that the recipient must issue a
written determination regarding responsibility. This written
determination must be provided to the parties simultaneously. To reach
this determination, the recipient must apply its chosen standard of
evidence and the written determination must include several components:
identification of the allegations potentially constituting sexual
harassment; a description of the procedural steps taken from the
receipt of the formal complaint through the determination; findings of
fact supporting the determination; conclusions regarding the
application of the recipient's code of conduct to the facts; a
statement of, and rationale for, the result as to each allegation,
including a determination regarding responsibility, any disciplinary
sanctions the recipient imposes on the respondent, and whether remedies
will be provided by the recipient to the complainant; and the
recipient's procedures and permissible bases for the complainant and
respondent to appeal.
This provision also states that the Title IX Coordinator is
responsible for the effective implementation of any remedies, and that
the determination regarding responsibility becomes final either on the
date that the recipient provides the parties with the written
determination of the result of the appeal, if an appeal is filed, or if
an appeal is not filed, the date on which an appeal would no longer be
considered timely.
Proposed regulations: Under proposed Sec. 106.45(h), following an
investigation as set out in proposed Sec. 106.45(f) and (g), a
recipient would have to determine whether sex discrimination occurred.
The Department proposes reorganizing the requirements from the current
regulatory provisions Sec. Sec. 106.45(b)(1)(i), 106.45(b)(1)(vii),
106.45(b)(2), 106.45(b)(7), and 106.71(b)(2) into proposed Sec.
106.45(h) with strengthened protections for the parties and other
changes so that this provision is consistent with the other revisions
proposed throughout the regulations.
Proposed Sec. 106.45(h)(1) would require a recipient to use the
preponderance of the evidence standard of proof to determine whether
sex discrimination occurred, unless the recipient uses the clear and
convincing evidence standard of proof in all other comparable
proceedings, including proceedings relating to other discrimination
complaints. In those situations, proposed Sec. 106.45(h)(1) would
allow the recipient to elect to use the clear and convincing evidence
standard of proof in determining whether sex discrimination occurred.
Proposed Sec. 106.45(h)(2) would require that a recipient notify the
parties of the outcome of the complaint, including the determination of
whether sex discrimination occurred, and the procedures and permissible
bases for the complainant and respondent to appeal, if applicable.
Proposed Sec. 106.45(h)(3) would require that, if there is a
determination that sex discrimination occurred, the recipient must, as
appropriate, require the Title IX Coordinator to provide and implement
remedies to a complainant or other person the recipient identifies as
having their equal access to the recipient's education program or
activity limited or denied by sex discrimination, and require the Title
IX Coordinator to take other appropriate prompt and effective steps to
ensure that sex discrimination does not continue or recur within the
recipient's education program or activity. Proposed Sec. 106.45(h)(4)
would preserve the requirement that the recipient must comply with this
section, and if applicable Sec. 106.46, before the imposition of any
disciplinary sanctions against a respondent. Proposed Sec.
106.45(h)(5) would prohibit a recipient from disciplining a party,
witness, or others participating in the recipient's grievance
procedures for making a false statement or for engaging in consensual
sexual conduct based solely on the recipient's determination of whether
sex discrimination occurred.
Reasons: The Department's current view is that these provisions
should be grouped together in the proposed regulations because all of
them would govern a recipient's determination of whether sex
discrimination occurred. Additional detailed explanation of the
requirements of proposed Sec. 106.45(h) is provided in the discussion
of each provision, including proposed changes from current Sec.
106.45. For additional requirements regarding the application of
proposed Sec. 106.45(h) in grievance procedures for sex-based
harassment complaints involving postsecondary students, see the
discussion of proposed Sec. 106.46(h).
Section 106.45(h)(1) Standard of Proof
Current regulations: Section 106.45(b)(1)(vii) requires a recipient
to state whether the standard of evidence to be used to determine
responsibility is the preponderance of the evidence standard or the
clear and convincing evidence standard, apply the same standard of
evidence for formal complaints against students as for formal
complaints against employees, including faculty, and apply the same
standard of evidence to all formal complaints of sexual harassment.
Proposed regulations: Proposed Sec. 106.45(h)(1) would require a
recipient to use the preponderance of the evidence standard of proof
when determining whether sex discrimination occurred except that the
recipient could use the clear and convincing evidence standard if the
recipient uses that standard of proof in all other comparable
proceedings, including proceedings relating to other discrimination
complaints. Under either standard of proof, proposed Sec. 106.45(h)(1)
would require the decisionmaker to evaluate the relevant evidence for
its persuasiveness.
Reasons: Standard of proof. The Department proposes using the term
``standard of proof'' instead of ``standard of evidence'' to clarify
that this would be the standard a recipient must use to determine
whether sex discrimination occurred. This proposed change would also
prevent confusion with the proposed definition of ``relevant,'' which
sets out a standard that must be applied to all evidence. The term
``relevant'' is explained in greater detail in the discussion of the
proposed definition of ``relevant'' (Sec. 106.2) and the discussion of
proposed Sec. 106.45(b)(6).
Requiring use of the preponderance of the evidence standard of
proof unless the clear and convincing evidence standard is used for
comparable proceedings. OCR heard from stakeholders during the June
2021 Title IX Public Hearing and in listening sessions regarding what
standard of proof a recipient should be required to use in its Title IX
grievance procedures, and similar comments were made by stakeholders in
meetings held in 2022 under Executive Order 12866, after the NPRM was
submitted to OMB. Some stakeholders said that the preponderance of the
evidence standard ensures fairness to the parties, who have an equal
stake in the outcome of the proceedings, by giving equal weight to
[[Page 41484]]
accounts of a complainant and respondent as to whether sexual
harassment occurred. Some stakeholders made the point that the
preponderance of the evidence standard is the typical standard applied
to evidence in civil litigation, including in cases alleging
discrimination under Title VII and Title VI, as well as under Title IX.
Others said that because litigation is different from a recipient's
administrative process, it is not appropriate to require recipients to
use the same standard as would be applied in civil litigation. Some
stakeholders also pointed to differences between the workplace and
education contexts, while others noted that Title IX applies to both
employees and students. Some stakeholders urged the Department to
require recipients to use the clear and convincing standard, or at a
minimum require it for sexual assault cases, because allegations
related to sexual misconduct, especially including sexual assault, are
of a serious nature, findings of responsibility may have long-term
consequences for a respondent, and the Title IX grievance process does
not afford all the same protections to the parties that are available
in a court proceeding. Other stakeholders described the framework from
the 2020 amendments--specifically, allowing recipients to choose
between the preponderance of the evidence and the clear and convincing
evidence standards of proof--as creating inequities in the grievance
process because it allows schools to use a different standard of proof
for sexual harassment allegations than it does for other misconduct
complaints, including complaints that allege other types of
discrimination.
When the Department promulgated the 2020 amendments and declined to
mandate either the preponderance of the evidence standard or the clear
and convincing evidence standard, the Department explained that
``either standard of evidence, in combination with the rights and
protections required under Sec. 106.45, creates a consistent, fair
process under which recipients can reach accurate determinations
regarding responsibility.'' 85 FR 30381. The Department further
explained that ``it [was] not aware of a Federal appellate court
holding that the clear and convincing evidence standard is required to
satisfy constitutional due process or fundamental fairness in Title IX
proceedings, and the Department [was] not aware of a Federal appellate
court holding that the preponderance of the evidence standard is
required under Title IX.'' Id. at 30384. This remains true as the
Department is not aware of a Federal appellate court that has since
held that a particular standard of proof is required to satisfy
constitutional due process or fundamental fairness in Title IX
proceedings.
Under the preponderance of the evidence standard of proof, a
determination that sex discrimination occurred can be made only if the
decisionmaker finds it is more likely than not that a respondent
engaged in sex discrimination. A respondent would not be found
responsible for sex discrimination if the evidence were in equipoise,
meaning evenly balanced for and against a determination of
responsibility. In such a case, there would not be sufficient evidence
for the decisionmaker to find it more likely than not that sex
discrimination occurred. The Department notes that several Federal
courts, including appellate courts, have held that the preponderance of
the evidence standard is constitutionally sound and sufficient to
ensure due process to a respondent when a school evaluates allegations
of sexual harassment. See, e.g., Doe v. Univ. of Ark.-Fayetteville, 974
F.3d 858, 868 (8th Cir. 2020) (``[W]e do not think a higher standard of
proof [than preponderance of the evidence] is compelled by the
Constitution. . . . A heightened burden of proof may lessen the risk of
erroneous deprivations for an accused, but it also could frustrate
legitimate governmental interests by increasing the chance that a true
victim of sexual assault is unable to secure redress and a sexual
predator is permitted to remain on campus.''); Cummins, 662 F. App'x at
449 (``Allocating the burden of proof [equally under the preponderance
of the evidence standard]--in addition to having other procedural
mechanisms in place that counterbalance the lower standard used (e.g.,
an adequate appeals process)--is constitutionally sound and does not
give rise to a due-process violation.''); Lee v. Univ. of N.M., 449 F.
Supp. 3d 1071, 1132 (D.N.M. 2020) (``[D]ue process permits state
education institutions . . . to adjudicate sexual misconduct
disciplinary proceedings according to a preponderance-of-the-evidence
standard.''); Messeri v. DiStefano, 480 F. Supp. 3d 1157, 1167-68 (D.
Colo. 2020) (``Increasing the evidentiary standard would undoubtedly
make it less likely that the University erroneously sanctioned
Plaintiff or others similarly situated. . . . [but] requiring a higher
evidentiary standard would . . . detract from the University's `strong
interest in the educational process, including maintaining a safe
learning environment for all its students.' . . . Balancing these
interests, the Court concludes that it is beyond dispute that due
process currently permits state educational institutions to adjudicate
disciplinary proceedings relating to sexual misconduct using a
preponderance of the evidence standard.'' (quoting Plummer v. Univ. of
Hous., 860 F.3d 767, 773 (5th Cir. 2017))); Doe v. Haas, 427 F. Supp.
3d 336, 350 (E.D.N.Y. 2019) (``The Court also rejects the contention
that due process required that the university apply a standard more
stringent than the preponderance of the evidence. Such a standard is
the accepted standard in the vast majority of civil litigations and . .
. courts have rejected the notion that the safeguards applicable to
criminal proceedings should be applied in the school disciplinary
context.''); Marshall v. Ind. Univ., 170 F. Supp. 3d 1201, 1206-08
(S.D. Ind. 2016) (finding that, based on the law in Indiana and the
Seventh Circuit, the university did not violate the plaintiff's due
process rights when it applied the preponderance of the evidence
standard at his disciplinary hearing before expelling him for sexual
misconduct).
Other courts have refused to dismiss cases challenging the
preponderance of the evidence standard or indicated that without other
procedural safeguards, use of the preponderance of the evidence
standard could violate due process. See, e.g., Doe v. Univ. of Miss.,
361 F. Supp. 3d 597, 614 (S.D. Miss. 2019) (refusing to dismiss a
challenge to the use of the preponderance of the evidence standard,
``[g]iven the developing nature of the law, and the fact that other
portions of this claim survive Defendants' Rule 12(b)(6) [motion]'');
Doe v. Univ. of Colo., 255 F. Supp. 3d 1064, 1082 n. 13 (D. Colo. 2017)
(finding, on a motion to dismiss, that the plaintiff raised ``a viable
procedural due process claim'' regarding ``whether preponderance of the
evidence is the proper standard for disciplinary investigations''); Doe
v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016) (explaining
that the use of the preponderance of the evidence standard ``is not
problematic, standing alone; that standard is commonly used in civil
proceedings, even to decide matters of great importance,'' but taking
issue with its use in its use in this case because it ``appear[ed] to
have been a deliberate choice by the university to make cases of sexual
misconduct easier to prove'' and further noting that this was
``particularly troublesome in light of the
[[Page 41485]]
elimination of other basic rights of the accused,'' including the use
of a single investigator model, no right to an effective appeal, and no
right to examine evidence or witness statements).
The preponderance of the evidence standard is commonly used in
civil litigation, including in cases involving alleged discrimination
in violation of civil rights laws, and the Supreme Court has applied a
preponderance of the evidence standard in litigation involving
discrimination under Title VII. See, e.g., Desert Palace, Inc. v.
Costa, 539 U.S. 90, 99 (2003) (declining to depart from the traditional
rule of civil litigation, that the preponderance of the evidence
standard generally applies in Title VII cases); Price Waterhouse v.
Hopkins, 490 U.S. 228, 252-55 (1989) (approving preponderance standard
in Title VII sex discrimination case) (plurality opinion); id. at 260
(White, J., concurring in the judgment); id. at 261 (O'Connor, J.,
concurring in the judgment). Further, numerous courts have held that
the preponderance of the evidence standard is a constitutionally
appropriate burden of proof in civil actions seeking to impose
liability for sexual assault and rape in State court. See, e.g.,
Ashmore v. Hilton, 834 So. 2d 1131, 1134 (La. Ct. App. 2002) (holding
that the preponderance of evidence standard is sufficient in civil rape
case); Jordan v. McKenna, 573 So. 2d 1371, 1376 (Miss. 1990) (holding,
in civil action for rape, that plaintiff's burden is ``by a
preponderance of the evidence''); Dean v. Raplee, 39 NE 952, 954 (N.Y.
1895) (finding preponderance of evidence sufficient in civil case
alleging sexual assault); cf. Metz v. Dilley (In re Dilley), 339 B.R.
1, 7 (B.A.P. 1st Cir. 2006) (``The crime of murder and the civil tort
of wrongful death require proof of different elements judged against
two different standards of proof.'' (citations omitted)); Metro. Life
Ins. Co. v. Kelley, 890 F. Supp. 746, 749 (N.D. Ill. 1995) (stating
that although criminal murder must be proven beyond reasonable doubt,
proof of wrongful death by murder in civil case must be proven only by
preponderance of evidence).
The Department acknowledges that in the civil litigation context,
there are procedural safeguards, such as discovery, that help to ensure
a fair process. In the preamble to the 2020 amendments, the Department
noted that ``civil litigation generally uses the preponderance of the
evidence standard'' and that Title IX grievance procedures ``are
analogous to civil litigation in some ways,'' but the Department also
stated that the Title IX grievance procedures as prescribed under the
2020 amendments ``do not have the same set of procedures available in
civil litigation.'' 85 FR 30381. Although the procedures may not be the
same, it is the Department's current view that the proposed regulations
include a number of key safeguards to ensure that a recipient's
grievance procedures provide a fair process for all involved. For
example, under the proposed regulations, at both elementary schools and
secondary schools as well as at postsecondary institutions, a
recipient's grievance procedures would have to, among other things:
Treat complainants and respondents equitably;
Prohibit the Title IX Coordinator, the investigator, and
the decisionmaker from having a conflict of interest or bias for or
against complainants or respondents generally or an individual
complainant or respondent;
Provide the recipient the discretion to dismiss a
complaint in four different circumstances, including when the
allegations, even if true, would not constitute sex discrimination
under Title IX;
Require notice to the parties of the allegations;
State that the grievance procedures must be followed
before determining whether sex discrimination occurred and before the
imposition of any disciplinary sanctions against a respondent and that
such sanctions may be imposed only if it is determined that the
respondent violated the recipient's prohibition on sex discrimination;
Require an objective evaluation of all relevant evidence
and exclude certain types of evidence as impermissible;
Place the burden on the recipient to conduct an
investigation that gathers sufficient evidence to reach a
determination;
Provide an equal opportunity for the parties to present
relevant fact witnesses and other inculpatory and exculpatory evidence;
Provide each party with a description of the relevant and
not otherwise impermissible evidence and a reasonable opportunity to
respond to that evidence;
Require the decisionmaker to adequately assess the
credibility of the parties and witnesses to the extent credibility is
in dispute and relevant to the allegations; and
Include the right of appeal in complaint dismissals, and
on certain bases for students in postsecondary institutions in cases of
sex-based harassment.
Under the proposed regulations, a recipient would be permitted to
adopt additional provisions as part of its grievance procedures, as
long as such provisions are applied equally to the parties. Proposed
Sec. 106.45(i).
The Department's current view is that these procedural safeguards
together would establish a strong framework for a fair process for all.
It is also the Department's current view that the preponderance of the
evidence is the standard of proof for complaints of sex discrimination
that would best promote compliance with Title IX because it ensures
that when a decisionmaker determines, based on evidence, that it is
more likely than not that sex discrimination occurred in its program or
activity, the recipient can take sufficient steps to deter the
respondent from engaging in similar conduct and prevent future such
violations. Use of a preponderance standard also equally balances the
interests of the parties in the outcome of the proceedings by giving
equal weight to the evidence of each party, and it begins proceedings
without favoring the version of facts presented by either side. See,
e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983) (``A
preponderance-of-the-evidence standard allows both parties to `share
the risk of error in roughly equal fashion' '' while ``[a]ny other
standard expresses a preference for one side's interests.'' (quoting
Addington v. Texas, 421 U.S. 418, 423 (1979))). The Department
understands that there can be serious consequences for a respondent who
is found to be responsible for sex-based harassment, including sexual
assault, and for complainants who have been subjected to sex-based
harassment. The Department further understands that all parties have an
equal interest in the outcome of the proceedings.
In addition, the Department notes that, according to recent
research, preponderance of the evidence is the standard of proof
already commonly used by postsecondary institutions for evaluating
evidence regarding all student conduct allegations, including sex-based
harassment. See Foundation for Individual Rights in Education,
Spotlight on Due Process 2020-2021, https://www.thefire.org/resources/spotlight/due-process-reports/due-process-report-2020-2021 (last
visited June 17, 2022) (analysis of disciplinary procedures at 53 top-
ranked public and private postsecondary institutions nationwide).
Stakeholders have confirmed for the Department that a very large
majority of elementary schools and secondary schools use the
[[Page 41486]]
preponderance of the evidence standard for evaluating evidence as well.
Nevertheless, the Department recognizes that a relatively small
number of recipients currently apply the clear and convincing evidence
standard of proof to code of conduct violations, either for the code as
a whole or for a subset of alleged violations of the code. Under the
clear and convincing evidence standard of proof, a decisionmaker would
be required to find, based on evidence it has gathered consistent with
its grievance procedures, that it is highly probable that allegations
of sex-based harassment or other sex discrimination are true before
determining that sex discrimination occurred. This is a higher standard
than proof by a preponderance of the evidence, but it would not require
proof beyond a reasonable doubt, as is required in a criminal
proceeding. The Department understands that these recipients have
determined that the clear and convincing evidence standard advances
certain other important institutional interests in a broad array of
disciplinary cases, not limited to those involving sex discrimination.
For some of these recipients, the use of a clear and convincing
evidence standard, like the use of a preponderance standard, may
reflect certain values of their educational community related to
student discipline generally. For others, there may be historical or
other factors that have guided their choice of standard of proof. The
Department also notes that if a recipient uses a clear and convincing
standard to evaluate evidence of other potential student conduct
violations, a requirement that a recipient maintain a lower standard of
proof for evaluating sex discrimination allegations may in some
circumstances give rise to confusion, perceptions of unfairness, and
resentment. See, e.g., Brandeis, 177 F. Supp. 3d at 607 (court stated
that requiring a preponderance of the evidence standard for sexual
misconduct cases may be seen ``as part of an effort to tilt the playing
field against accused students'' where an institution applies the
clear-and-convincing standard for ``virtually all other forms of
student conduct''). These perceptions may complicate a recipient's
administration of its student disciplinary codes in general, and in
particular its grievance procedures for complaints of sex
discrimination, in ways that are counterproductive to preventing and
responding to sex discrimination in the recipient's education program
or activity.
The Department notes that the American Law Institute (ALI)
membership, at its May 2022 Annual Meeting, approved the following
principle as part of its project on procedural frameworks for resolving
campus sexual misconduct cases in postsecondary institutions:
Sec. 6.8. Standard of Proof
Colleges and universities should adopt the same standard of proof
for resolving disciplinary claims of sexual misconduct by students as
they use in resolving other comparably serious disciplinary complaints
against students. Standards that require proof either by a
``preponderance of the evidence'' or by ``clear and convincing
evidence'' can satisfy the requirements of procedural due process and
fair treatment. Whatever standard of proof is adopted, decisions that
the standard of proof is met should always rest on a sound evidentiary
basis.
American Law Institute, Black Letter of Student Sexual Misconduct:
Procedural Frameworks for Colleges and Universities, Tentative Draft
No. 1 (Apr. 2022) (as approved by the ALI membership, May 2022) at 12-
13, https://www.ali.org/media/filer_public/ce/1c/ce1ca6e7-557b-4f73-bba8-ef12d9ae56a2/student-misconduct-td1-black-letter.pdf. The
Department's proposed regulations would align with the ALI position,
providing that for sex discrimination complaints a recipient can use
either the preponderance of evidence or the clear and convincing
evidence standard of proof but must not use a higher standard of proof
for evaluating evidence of sex discrimination than for other forms of
discrimination or other comparable proceedings.
The Department's current view is that the ``beyond a reasonable
doubt'' standard from criminal law is never appropriate for evaluating
evidence in a recipient's grievance procedures under Title IX. This
position is consistent with the 2020 amendments, which do not permit
application of the ``beyond a reasonable doubt'' standard in Title IX
grievance proceedings. See 85 FR 30051 n.225. The criminal standard is
designed specifically as a safeguard for proceedings in which an
accused person may be deprived of their liberty or their life by the
State or Federal government, which are not possible sanctions
associated with a recipient's grievance procedures.
Reasonable limitations on recipients' choice of standard of proof
for allegations of sex discrimination. In proposed Sec. 106.45(h)(1),
the Department proposes allowing recipients to use the clear and
convincing evidence standard of proof for sex discrimination
allegations only if the recipient uses the clear and convincing
evidence standard of proof in all other comparable proceedings,
including proceedings relating to other discrimination complaints. The
Department's current view is that a recipient that used a clear and
convincing evidence standard for sex discrimination allegations, but a
preponderance standard for other comparable proceedings, would not
effectuate Title IX's nondiscrimination mandate because applying a more
demanding standard of proof for sex discrimination allegations than for
allegations of other types of discrimination or other comparable
proceedings would impose a uniquely heavy burden on complainants
alleging sex discrimination.
Specifically, in light of recipients' substantially similar legal
obligations under Federal laws that prohibit various types of
discrimination, the Department believes it is appropriate to require a
recipient to use a standard of proof for allegations of sex
discrimination that is not higher than the standard of proof for
allegations of other forms of discriminatory conduct that the recipient
must address consistent with its obligations under Federal law. This
means that a recipient that uses a preponderance of the evidence
standard for evaluating allegations of harassment or other
discrimination based on race, color, national origin disability, or
age, for example, must use that standard for evaluating allegations of
sex discrimination. Similarly, a recipient that uses a clear and
convincing evidence standard for evaluating allegations of other forms
of discrimination may choose to use that standard for evaluating
alleged sex discrimination as well. Otherwise, a singular imposition of
a higher standard on sex discrimination complaints would impermissibly
discriminate based on sex.
Removing the requirement to use the same standard for complaints
against students and employees. Proposed Sec. 106.45(h)(1) would also
differ from current Sec. 106.45(b)(1)(vii) in that it would not
require a recipient to use the same standard of proof for complaints
against students as it would for complaints against employees. The
Department's current view, informed by the input of stakeholders, is
that allegations regarding sex discrimination by a student are
comparable to allegations of other types of discrimination by a
student, and that allegations of sex discrimination by an employee are
comparable to allegations of other types of discrimination by an
employee. Therefore, under the proposed regulations a recipient would
[[Page 41487]]
be able to apply a different standard of proof to allegations of
student misconduct than it would to allegations of employee misconduct.
During the June 2021 Title IX Public Hearing and in listening
sessions, OCR heard from stakeholders that requiring recipients to use
the same standard of proof for complaints against students and
employees hampered the recipients' flexibility to choose a standard
that is responsive to the many differences in a recipient's
interactions with and obligations to its students and its employees.
After reevaluating the issue and taking into account factors relevant
to a recipient's distinct, even if interrelated, functions and
obligations as an educator and as an employer, the Department proposes
removing the requirement for recipients to use the same standard of
proof for sexual harassment complaints against students and employees.
As discussed in the preamble to the 2020 amendments, recipients may
have collective bargaining agreements or State laws mandating certain
standards of proof for evaluating employee conduct allegations and may
want to select a different standard of proof for student conduct
allegations or may have State laws requiring them to use a different
standard of proof for students. Id. at 30376, 30378. The Department now
believes that requiring the same standard of proof for complaints
against students and employees is not necessary because of the
difference in the relationships and obligations recipients have vis-
[agrave]-vis students as compared to employees. Requiring the same
standard of proof to be used for student and employee complaints also
is not necessary to ensure predictability for students (another concern
raised by commenters in 2020, id. at 30375-76), because current Sec.
106.45(b)(1)(vii) already requires recipients to state whether the
standard of proof to be used to determine whether the respondent
violated the recipient's prohibition on sexual harassment is the
preponderance of the evidence standard or the clear and convincing
evidence standard, and proposed Sec. 106.45(h)(1) would preserve that
requirement for all complaints of sex discrimination. Under the current
regulations, recipients are already required and will continue to be
required under the proposed regulations, to make their students and
employees aware of what standard of proof they will apply to such
allegations. For some recipients, this may require a statement that
they will use one standard of proof for allegations of sex
discrimination against employees, or against a certain subset of
employees, and a different standard of proof for allegations of sex
discrimination against students. Under proposed Sec. 106.45(h)(1), the
use of a clear and convincing evidence standard for any allegations of
sex discrimination would be permitted only if the recipient used the
same standard in all other comparable proceedings, including
proceedings relating to other discrimination complaints, involving a
given category of respondents.
For example, if a recipient is bound by a collective bargaining
agreement to use the clear and convincing evidence standard for
allegations that an employee engaged in race discrimination, as well as
all other comparable allegations, it could elect to use the same
standard for sex discrimination allegations against an employee. If the
same recipient uses a clear and convincing evidence standard for
allegations of race discrimination and other comparable offenses
against a student, it could choose to use the clear and convincing
evidence standard for allegations of student sex discrimination.
However, if that recipient uses a preponderance of the evidence
standard for allegations that a student engaged in race discrimination,
it would have to use the preponderance of the evidence standard for
allegations of student sex discrimination. The Department notes that it
applies the preponderance of the evidence standard to evaluate
allegations of discrimination under all of the laws it enforces and
that it does so for the equity-related reasons explained in the
discussion of its benefits.
In light of this discussion, the Department invites the public to
comment on proposed Sec. 106.45(h)(1). In particular, to the extent
commenters take the position that the clear and convincing standard
would be appropriate when used in all other comparable proceedings, the
Department invites comments on steps that recipients implementing that
standard have taken to ensure equitable treatment between the parties.
The Department also invites comments on whether it is appropriate to
allow a recipient to use a different standard of proof in employee-on-
employee sex discrimination complaints, than it uses in sex
discrimination complaints involving a student. Finally, the Department
invites comments on whether it would be appropriate to mandate the use
of only one standard of proof for sex discrimination complaints.
The decisionmaker must evaluate the relevant evidence for its
persuasiveness. The Department recognizes that clarifying that relevant
evidence must be evaluated for its persuasiveness will help inform
decisionmakers of the appropriate way to evaluate evidence under either
a preponderance of the evidence or clear and convincing evidence
standard of proof. In particular, OCR has received comments and heard
in listening sessions that this type of clarification may be especially
useful for those without formal legal training to confirm that the
evaluation of evidence involves an assessment of the persuasiveness of
evidence rather than a weighing of the sheer quantity of evidence
tending to support or disprove the allegations.
Section 106.45(h)(2) Notification of Outcome of Complaint
Current regulations: Section 106.45(b)(7) states that the recipient
must issue a written determination regarding responsibility that is
provided to the parties simultaneously. To reach this determination,
the recipient must apply its chosen standard of evidence and the
written determination must include several components: (A)
identification of the allegations potentially constituting sexual
harassment; (B) a description of the procedural steps taken from the
receipt of the formal complaint through the determination; (C) findings
of fact supporting the determination; (D) conclusions regarding the
application of the recipient's code of conduct to the facts; (E) a
statement of, and rationale for, the result as to each allegation,
including a determination regarding responsibility, any disciplinary
sanctions the recipient imposes on the respondent, and whether remedies
will be provided by the recipient to the complainant; and (F) the
recipient's procedures and permissible bases for the complainant and
respondent to appeal.
Proposed regulations: Proposed Sec. 106.45(h)(2) would require
that a recipient notify the parties of the outcome of the complaint,
including the determination of whether sex discrimination occurred, and
the procedures and permissible bases for the complainant and respondent
to appeal, if applicable. Regarding the right to appeal, the Department
proposes maintaining the existing language of Sec. 106.45(b)(1)(viii)
but proposes clarifying its applicability to all complaints of sex
discrimination, not just complaints of sex-based harassment.
Reasons: Proposed Sec. 106.45(h)(2) would preserve the requirement
that a recipient notify the parties of the outcome of the complaint,
but the
[[Page 41488]]
notification would not have to be in writing. The Department
reconsidered the need to adopt a framework for the grievance procedures
that a recipient must follow when responding to all complaints of sex
discrimination in light of the recipient's obligations under Title IX
to operate its education program or activity free from sex
discrimination, not just sexual harassment. In light of that
restructuring, all of the current requirements for sexual harassment
complaints would not necessarily be appropriate or necessary for all
sex discrimination complaints, or in all settings. The Department
explained in the preamble to the 2020 amendments that the nature of the
protections needed ``in the `particular situation' of elementary and
secondary schools may differ from protections necessitated by the
`particular situation' of postsecondary institutions.'' 85 FR 30052.
The Department maintains this view and also believes that that the
specific procedures necessary to afford prompt and equitable grievance
procedures that are designed to ensure a fair and reliable process for
sex discrimination complaints will differ based on the nature of the
allegations (e.g., sex-based harassment or other forms of sex
discrimination such as prohibited different treatment or pregnancy
discrimination), and the unique characteristics of the individuals
involved (e.g., age, level of independence, relationship to the
recipient).
The Department also takes the tentative position that the
provisions in proposed Sec. 106.46, which contain requirements related
to written communications with the parties, may not be necessary to
ensure an equitable process for other types of sex discrimination
complaints, and could have the unintended consequence of impeding
effective enforcement of Title IX by delaying a recipient's prompt
response to other forms of possible sex discrimination. The Department
recognizes the requirements in current Sec. 106.45 (many of which
appear in proposed Sec. 106.46) were applied in the 2020 amendments
only to sexual harassment complaints, which may require greater
participation by a complainant and respondent than other complaints of
sex discrimination. With regard to the written determination
requirement, the Department stated in the preamble to the 2020
amendments that requiring a written determination in sexual harassment
complaints served the important function of ensuring the parties know
the reasons for the outcome of the grievance procedure and help ensure
independent judgment and decisionmaking free from bias. Id. at 30389.
Although the Department continues to prioritize independent judgment
and bias-free decisionmaking, it proposes that the written
determination requirement would not be necessary in the broader context
of all sex discrimination complaints and, in some educational
environments, may function as an impediment to addressing sex
discrimination in a recipient's program or activity.
It is the Department's current view that the requirement of
proposed Sec. 106.45(h)(2) that the recipient notify the parties of
the outcome of the complaint is sufficient to fulfill Title IX's
nondiscrimination requirement, coupled with the requirement that a
recipient maintain a record of the outcome, as explained in greater
detail in the discussion of proposed Sec. 106.8(f)(1). Previously, the
Department asserted that the burden created by the current written
determination requirement was outweighed by the benefits of a reliable,
consistent, transparent process for students in elementary and
secondary schools, as well as students at postsecondary institutions,
irrespective of the size of the institution's student body. Id. The
Department has since reconsidered whether that burden is necessary,
particularly for all sex discrimination complaints in the elementary
school and secondary school setting. In the June 2021 Title IX Public
Hearing, OCR heard from elementary school and secondary school
recipients that the current regulations were not developed with their
interests in mind, and that elementary school and secondary school
recipients do not have the infrastructure to perform all the current
requirements. Specifically, the written determination of responsibility
was highlighted as one of the requirements that increases the length of
time for an elementary school or secondary school recipient to resolve
a complaint and makes the overall procedures more difficult.
It is the Department's tentative view that transparency and
consistency would be achieved with the other proposed changes to the
regulations, and that the burden of requiring all recipients to provide
a written determination for all types of complaints may actually impede
effective fulfillment of Title IX's nondiscrimination guarantee and
should therefore not be required here. The Department also notes
additional requirements in proposed Sec. 106.45 that would ensure
transparency and consistency in a recipient's grievance procedures,
including requirements of notice of the allegations to the parties
(proposed Sec. 106.45(c)); equitable treatment of complainants and
respondents (proposed Sec. 106.45(b)(1)); prohibition on conflict of
interest or bias for or against complainants or respondents (proposed
Sec. 106.45(b)(2)); presumption of non-responsibility (proposed Sec.
106.45(b)(3)); objective evaluation of all relevant, and not otherwise
impermissible, evidence (proposed Sec. 106.45(b)(6) and (7)); allowing
the parties an equal opportunity to present relevant witnesses and
other inculpatory and exculpatory evidence (proposed Sec.
106.45(f)(2)); providing each party with a description of the evidence
that is relevant and not otherwise impermissible (proposed Sec.
106.45(f)(4)); requiring adherence to these grievance procedures before
imposition of any disciplinary sanctions (proposed Sec. 106.45(h)(4));
and the right to appeal complaint dismissals (proposed Sec.
106.45(d)(3)). In light of these protections, which together create the
framework for an equitable process, the Department's current view is
that a requirement of written communication of the outcome in all cases
is not necessary to ensure effective implementation of Title IX. The
Department recognizes that some recipients may determine that, for
their educational environment, providing outcome determinations in
writing for some or all types of complaints will be appropriate,
particularly when students have the skills and maturity to understand
the recipient's written communication or where such communications may
be useful in providing outcome information to parents, guardians, or
legally authorized representatives of students in elementary school or
secondary school.
In addition, the Department recognizes that some recipients may
provide detailed information to parties regarding the facts determined
through an investigation while others may state only whether sex
discrimination occurred under Title IX. Proposed Sec. 106.45(h)(2)
provides a recipient with flexibility to choose what information to
share while setting a baseline requirement that recipients inform any
parties of the outcome of the investigation and a determination as to
whether sex discrimination occurred under Title IX. The purpose of this
proposed change is to ensure consistency so that all parties to sex
discrimination complaints, rather than only those involved in sex-based
harassment complaints, receive information about the outcome and
[[Page 41489]]
determination. In addition, learning about the outcome of complaints
and the recipient's determination would provide parties with
confirmation that the grievance procedures were completed; without that
confirmation, parties could be left unsure about whether the grievance
procedures were completed or whether the recipient determined the
alleged conduct to be sex discrimination.
Proposed Sec. 106.45(h)(2) would also require a recipient to
notify the parties of the procedures and permissible bases of appeal,
if applicable. The proposed regulations would not require a recipient
to provide a right to appeal, other than for complaint dismissals or in
grievance procedures for a complaint of sex-based harassment involving
a student at a postsecondary institution, but would require that
information about appeals be provided, if any are available. It is the
Department's current view that, for complaints of sex discrimination,
other than complaint dismissals or complaints of sex-based harassment
involving a student at a postsecondary institution, a recipient should
have the discretion to decide whether a right to appeal a determination
would be appropriate for a given type of complaint. For example, in
some elementary school and secondary school settings involving
complaints related to less serious conduct, the delay associated with
an appeal could impair a recipient's ability to manage the school
environment while sex-based harassment may be ongoing. In addition, a
recipient's relationships with its employees vary significantly,
ranging from temporary and at-will employees to those who are tenured.
A right to an appeal may not be necessary or appropriate in all
instances for a recipient to resolve, promptly and equitably, as
required by Title IX, every complaint of employee-on-employee sex-based
harassment. The same is true for complaints involving third parties.
Further, with respect to employees, as explained in the discussion of
the Overall Considerations and Framework (Section II.F.2.a), the
Department recognizes that recipients have Federal law obligations to
employees under Title VII as well as Title IX, and may also have
obligations under other State or local laws, which may require
processes that are specifically adapted to these types of complaints,
and may or may not include a right to appeal.
The Department notes that, whatever a recipient decides, it must
not be arbitrary in the exercise of its discretion to offer a right to
appeal. That is, a recipient must treat similar complaints similarly,
consistent with its obligations under Title IX and other applicable
Federal nondiscrimination laws. If a recipient offers appeals, proposed
Sec. Sec. 106.45(d) and 106.46(i) would provide guidelines for how to
provide those appeals. In particular, as explained in the discussion of
proposed Sec. 106.45(d)(3), any decisionmaker for an appeal must be
trained on how to serve impartially, avoiding bias, conflicts of
interest, and prejudgment of the facts.
Section 106.45(h)(3) Remedies to a Complainant and Other Appropriate
Prompt and Effective Steps
Current regulations: Section 106.45(b)(7) states that the Title IX
Coordinator is responsible for the effective implementation of any
remedies.
Proposed regulations: Proposed Sec. 106.45(h)(3) would require
that, if there is a determination that sex discrimination occurred, the
recipient must, as appropriate, require the Title IX Coordinator to
provide and implement remedies to a complainant or other person the
recipient identifies as having their equal access to the recipient's
education program or activity limited or denied by sex discrimination,
and require the Title IX Coordinator to take other appropriate prompt
and effective steps to ensure that sex discrimination does not continue
or recur within the recipient's education program or activity.
Reasons: The requirement in proposed Sec. 106.45(h)(3) to provide
and implement remedies to a complainant or other person the recipient
identifies, as appropriate, is similar to the language in current Sec.
106.45(b)(1)(i), but would apply to all forms of sex discrimination,
not just sexual harassment, consistent with other proposed revisions to
the regulations governing grievance procedures. In addition, proposed
Sec. 106.45(h)(3) would require a recipient to provide and implement
those remedies as appropriate; the use of ``as appropriate'' accounts
for the fact that in some situations, even when sex discrimination has
occurred, it will not be appropriate to provide remedies to a
complainant. For example, after investigating a student complaint
alleging that a school district failed to adequately accommodate the
athletic interests and abilities of girls, a school district determines
that sex discrimination occurred. If the complainant since graduated,
there may be no appropriate individual remedies for the recipient to
provide to the complainant, in which case, the recipient's action to
address the sex discrimination instead would include remedies as
appropriate for current students who experienced the same sex
discrimination and other remedies as necessary and appropriate to bring
the athletic program into compliance with Title IX. Or, as another
example, a recipient that provides a remedy to a complainant who
experienced sex-based harassment might also need to provide training or
other educational programming to address the educational environment
for other participants in that environment who, while not harassed, may
have witnessed the sex-based harassment. This additional step of
providing training or other programming could help make clear what
conduct is sex discrimination, and therefore mitigate the risk for
future harassment if the harassment currently at issue is not addressed
and recurs.
Section 106.45(h)(4) Comply With This Section Before Imposition of
Disciplinary Sanctions
Current regulations: Section 106.45(b)(1)(i) requires a recipient
to follow a grievance process that complies with Sec. 106.45 before
the imposition of any disciplinary sanctions or other actions that are
not ``supportive measures'' as defined in Sec. 106.30, against a
respondent.
Proposed regulations: Proposed Sec. 106.45(h)(4) would require a
recipient to follow grievance procedures that comply with proposed
Sec. 106.45, and, if applicable, proposed Sec. 106.46, before the
imposition of any disciplinary sanctions against a respondent.
Reasons: Proposed Sec. 106.45(h)(4) would maintain the same
general requirement as in current Sec. 106.45(b)(1)(i) that a
recipient follow grievance procedures that comply with proposed Sec.
106.45, and if applicable proposed Sec. 106.46, before imposing
disciplinary sanctions on a respondent. As explained in the discussion
of proposed Sec. 106.45(b)(1), the Department proposes moving this
requirement from the requirement to treat complainants promptly and
equitably so as not to imply that the only action a recipient must take
to treat a respondent equitably is to follow grievance procedures that
comply with proposed Sec. 106.45, and if applicable proposed Sec.
106.46, before the imposition of any disciplinary sanctions. Proposed
Sec. 106.45(h)(4) would also apply to all complaints of sex
discrimination, not just sexual harassment. This change is necessary to
be consistent with other proposed changes to the regulations as
explained in the discussion of the Overall Considerations and Framework
(Section II.F.2.a).
[[Page 41490]]
Section 106.45(h)(5) Prohibition on Discipline Based Solely on
Determination
Current regulations: Section 106.71(b)(2) provides that when a
recipient charges an individual with a code of conduct violation for
making a materially false statement in bad faith during a Title IX
grievance proceeding, such an action is not retaliatory as long as the
recipient did not base its determination that a person made a
materially false statement in bad faith solely on the outcome of the
grievance proceeding.
Proposed regulations: Proposed Sec. 106.45(h)(5) would prohibit a
recipient from initiating a disciplinary process against a party,
witness, or other participant in a recipient's grievance procedures
under proposed Sec. 106.45, and if applicable proposed Sec. 106.46,
for making a false statement or for engaging in consensual sexual
conduct based solely on the recipient's determination of whether sex
discrimination occurred. This proposed provision incorporates the
relevant content of current Sec. 106.71(b)(2), which the Department
would fully remove.
Reasons: In order to provide an education program or activity free
from sex discrimination, a recipient must implement grievance
procedures under proposed Sec. 106.45, and if applicable proposed
Sec. 106.46, in a way that does not impede parties, witnesses, and
other participants from providing information to the recipient
regarding sex discrimination that may have occurred in the recipient's
program or activity. Allowing parties, witnesses, and other
participants to participate fully in the recipient's grievance
procedures is also integral to ensuring that a recipient's efforts to
address sex discrimination are equitable. Proposed Sec. 106.45(h)(5)
would further these goals by providing parties, witnesses, and other
participants in a recipient's grievance procedures with assurance that
the recipient cannot discipline them for making a false statement or
engaging in consensual sexual activity based solely on the
determination of whether sex discrimination occurred.
The Department proposes changing the word ``person'' in current
Sec. 106.71(b)(2) to the phrase ``parties, witnesses, or other
participants'' to make clear that this provision protects any form of
participation in the recipient's grievance procedures under proposed
Sec. 106.45, and if applicable proposed Sec. 106.46. In light of the
Department's concern about chilling participation in these grievance
procedures, the Department believes that providing protection for all
participants would best ensures a thorough and equitable process.
The Department also notes that these prohibitions would apply
regardless of whether the recipient intended use the disciplinary
process to retaliate against a person. If a recipient were to engage in
this type of discipline for the purpose of retaliating against a party,
witness, or other participant in its grievance procedures, it would be
in violation of both proposed Sec. Sec. 106.45(h)(5) and 106.71(a).
False statements. As explained in greater detail in the discussion
of proposed Sec. 106.71, the Department proposes removing current
Sec. 106.71(b)(2). Current Sec. 106.71(b)(2) provides that it is not
retaliatory to charge an individual with a code of conduct violation
for making a materially false statement if the determination that the
statement was materially false was not based solely on the recipient's
determination of responsibility in the underlying grievance proceeding.
The Department proposes explicitly stating in proposed Sec.
106.45(h)(5), which applies to all grievance procedures under Title IX,
that a recipient must not discipline a person for making a false
statement based solely on a determination from the recipient's
grievance procedures that the person's allegations, arguments, or other
statements were not supported by the evidence.
In the preamble to the 2020 amendments, the Department explained
that it added current Sec. 106.71(b)(2) in response to comments
stating that ``lying should not be protected and that any retaliation
provision should explicitly exclude from protection those who make
false allegations or false statements during a grievance process.'' 85
FR 30537. During the June 2021 Title IX Public Hearing and in listening
sessions with stakeholders, OCR received feedback expressing confusion
generated by the wording of current Sec. 106.71(b)(2). Stakeholders
requested that the Department clarify that it would be retaliatory to
discipline a student for making a false report of sex discrimination
solely because the recipient found in favor of the respondent.
The Department acknowledges that the wording of this prohibition in
current Sec. 106.71(b)(2) as an exception to a general rule permitting
discipline for false statements might have caused confusion. The
Department is also concerned that current Sec. 106.71(a) may have a
chilling effect on a person's participation in a recipient's grievance
procedures for fear of being disciplined. As a result, the Department
proposes replacing the current provision with proposed Sec.
106.45(h)(5), which would make clear that the recipient must not
initiate its disciplinary process against a person for making a false
statement based solely on a determination in the recipient's grievance
procedures that sex discrimination did not occur including, for
example, when the recipient found the person's statements were not
supported by the evidence.
The Department also proposes removing the term ``materially'' from
current Sec. 106.71(b)(2) and referring simply to ``false''
statements. The Department now believes that allowing a recipient to
discipline a person for making any false statement based solely on its
determination in the underlying complaint of sex discrimination could
chill participation in the grievance procedures. This proposed change
would not only address concerns about adequate protection for those
participating in the recipient's grievance procedures but also would
maintain the recipient's discretion to discipline those who make false
statements based on evidence other than the outcome of its grievance
procedures.
Consensual sexual activity. Proposed Sec. 106.45(h)(5) would also
clarify that a recipient must not discipline a person for having
engaged in consensual sexual activity when that determination is based
solely on the findings of the recipient's grievance procedures. As
noted in the discussion of proposed Sec. 106.44(b), the Department
recognizes that discipline for collateral conduct violations, including
consensual sexual conduct, may create a barrier to participation in the
recipient's grievance procedures.
The Department received comments as part of the June 2021 Title IX
Public Hearing requesting a broader prohibition on discipline for
collateral conduct violations such as consensual sexual conduct to
ensure that the regulations address a broader range of situations in
which a complainant may fear that discipline for disclosing information
about sexual conduct in a sex-based harassment grievance procedure. In
addition, the Department notes that this concern regarding discipline
for consensual sexual conduct has been raised by plaintiffs in Title IX
litigation as well as in OCR's enforcement practice. See, e.g., Doe v.
Gwinnett Cnty. Sch. Dist., Civil Action No. 1:18-CV-05278-SCJ, 2021 WL
4531082, at *6 (N.D. Ga. Sept. 21, 2021); OCR Case No. 06-11-1487,
Henderson Indep. Sch. Dist. (June 14, 2012) (letter of finding),
https://www2.ed.gov/about/
[[Page 41491]]
offices/list/ocr/docs/investigations/more/06111487-a.pdf.
The Department proposes responding to the concerns raised by
stakeholders by including in proposed Sec. 106.45(h)(5) a prohibition
on disciplining a party, witness, or other participant for engaging in
consensual sexual conduct when the recipient's only basis for the
discipline is a determination that sex discrimination did not occur.
The Department would refer specifically to consensual sexual conduct to
make clear that an individual's disclosure of additional sex
discrimination, including sex-based harassment, during the grievance
procedures would not be entitled to the protection of proposed Sec.
106.45(h)(5) to implement Title IX's guarantee. By providing protection
from collateral discipline for consensual sexual conduct in proposed
Sec. 106.45(h)(5), the proposed regulations would remove this
potential barrier to information sharing in the grievance procedures
and, in turn, further promote a fair process in which parties,
witnesses, and participants are not discouraged from fully and
accurately relating necessary facts.
Section 106.45(i) Additional Provisions
Current regulations: Section 106.45(b) requires all recipients to
use a grievance process for formal complaints of sexual harassment that
complies with all of the requirements of Sec. 106.45. It also states
that any provisions, rules, or practices other than those required by
this section that a recipient adopts as part of its grievance process
for handling ``formal complaints of sexual harassment'' as defined in
Sec. 106.30 must apply equally to both parties.
Proposed regulations: The Department proposes moving the language
in the current regulations regarding additional provisions of a
recipient's grievance procedures to proposed Sec. 106.45(i) and
applying this requirement to grievance procedures for all forms of sex
discrimination, not only sexual harassment. The Department also
proposes removing the language from current Sec. 106.45(b) requiring
all recipients to use a grievance process for formal complaints of
sexual harassment that complies with all of the requirements of Sec.
106.45 to account for other proposed changes to the regulations
regarding the grievance procedure requirements. Proposed Sec.
106.45(i) would state that if a recipient adopts additional provisions
as part of its grievance procedures for complaints of sex
discrimination, including sex-based harassment, these additional
provisions must apply equally to the parties.
Reasons: The proposed revisions are necessary to make the
regulatory text consistent with the Department's proposed changes to
apply the grievance procedures described in proposed Sec. 106.45 to
all forms of sex discrimination, including sex-based harassment, as
explained in the discussion of the Framework for Grievance Procedures
for Complaints of Sex Discrimination (Section II.F). The proposed
revisions are also consistent with the statements that the Department
made describing this provision in the preamble to the 2020 amendments
and do not represent a shift in position.
The Department maintains its position, as stated in the preamble to
the 2020 amendments, that under Title IX, ``recipients [have]
discretion to adopt rules and practices not required under Sec.
106.45.'' 85 FR 30209. The Department also continues to hold the view
that Title IX requires that any ``grievance [procedure] rules a
recipient chooses to adopt (that are not already required under Sec.
106.45) must treat the parties equally.'' Id. at 30242.
The Department similarly affirms that under its proposed
regulations, a recipient would be required to apply this provision to
its handling of each sex discrimination complaint and that a
recipient's equal treatment obligation would not necessarily require
identical treatment of the parties to a complaint of sex
discrimination. As the Department explained in the preamble to the 2020
amendments, ``[w]here parties are given `equal' opportunity, for
example, both parties must be treated the same,'' but this does not
mean that they must be given the exact same practice or accommodation.
Id. at 30186. The Department provided two examples in the preamble to
the 2020 amendments that help to illustrate this principle: ``The equal
opportunity for both parties to receive a disability accommodation does
not mean that both parties must receive a disability accommodation or
that they must receive the same disability accommodation. Similarly,
both parties may not need [an interpreter], and a recipient need not
provide [an interpreter] for a party who does not need one, even if it
provides [an interpreter] for the party who needs one.'' Id. (emphasis
omitted)
Likewise, consistent with the principle that equal treatment does
not require identical treatment, a recipient's grievance procedures may
recognize that employee parties may have distinct rights in a
collective bargaining agreement with the recipient or by other means
that are not applicable to parties who are not employees. This is
recognized in current Sec. 106.6(f), which states that ``[n]othing in
this part may be read in derogation of any individual's rights under
title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., or
any regulations promulgated thereunder.'' Similarly, student parties
may have rights or benefits associated with their student status.
Section 106.45(j) Informal Resolution
Current regulations: Current Sec. 106.45(b)(2)(A) requires a
recipient, upon receipt of a formal complaint, to provide written
notice of any informal resolution process to the parties who are known.
Current Sec. 106.45(b)(9)(i) also requires a recipient to provide a
written notice to the parties disclosing the allegations; the
requirements of the informal resolution process, including the
circumstances under which it precludes the parties from resuming a
formal complaint arising from the same allegations; that at any time
prior to agreeing to a resolution, any party has the right to withdraw
from the informal resolution process and resume the grievance process
with respect to the formal complaint; and any consequences resulting
from participating in the informal resolution process, including the
records that will be maintained or could be shared.
Proposed regulations: Proposed Sec. 106.45(j) would state that, in
lieu of resolving a complaint through the recipient's grievance
procedures, the parties may instead elect to participate in an informal
resolution process under Sec. 106.44(k) if provided by the recipient
consistent with that paragraph. Proposed Sec. 106.44(f)(2)(ii) would
require the Title IX Coordinator to notify the parties to any complaint
of sex discrimination of any informal resolution process, if available
and appropriate. For additional requirements regarding the application
of this provision in grievance procedures for sex-based harassment
complaints involving postsecondary students, see the discussion of
proposed Sec. 106.46(j).
Reasons: The Department's current view is that a recipient should
continue to retain the discretion to offer the parties to a sex
discrimination complaint an alternative option for resolving the
complaint, subject to the process protections described in the proposed
regulations. As explained in greater detail in the discussion of
proposed Sec. 106.44(k), the Department recognized in the preamble to
the 2020 amendments that informal resolution ``empowers the parties by
offering
[[Page 41492]]
alternative conflict resolution systems that may serve their unique
needs and provides greater flexibility to recipients in serving their
educational communities.'' 85 FR 30403. An informal resolution process
is not a fact-finding, investigative process to reach a determination
about whether sex discrimination occurred as set out in the grievance
procedures under proposed Sec. 106.45, and if applicable proposed
Sec. 106.46; instead, it is an alternative avenue through which
parties may agree to a resolution of the complaint. The Department's
view is that a recipient is in the best position to determine whether
an informal resolution process would be a potential good fit for the
facts and circumstances of a particular complaint, subject to the
specific parameters described in the proposed regulation. The
Department notes that, whatever a recipient decides, a recipient must
treat similar complaints similarly, consistent with its obligations
under Title IX and other applicable Federal nondiscrimination laws.
Section 106.45(k) Range of Supportive Measures and Disciplinary
Sanctions and Remedies
Current regulations: Section 106.45(b)(1)(vi) requires a
recipient's grievance process to describe the range of possible
disciplinary sanctions and remedies or list the possible disciplinary
sanctions and remedies that a recipient may implement following any
determination of responsibility. Section 106.45(b)(1)(ix) requires a
recipient to include a description of the range of supportive measures
available to a complainant and respondent.
Proposed regulations: The Department proposes maintaining the
requirement in the current regulations that a recipient include a
description of the range of supportive measures available to a
complainant and respondent but moving this requirement to proposed
Sec. 106.45(k)(1). The Department continues to recognize that the
provision of supportive measures is fact-specific. Therefore, the
Department emphasizes that proposed Sec. 106.45(k)(1), like current
Sec. 106.45(b)(1)(ix), would require only that a recipient describe
the range of supportive measures available ``rather than a list.'' 85
FR 30277. This requirement would ensure that a recipient continues to
have the ability to offer a variety of supportive measures while
continuing to require transparency for the recipient's educational
community. The Department also proposes maintaining the requirement in
the current regulations that a description of the range of supportive
measures is required only for complaints alleging sex-based harassment.
Although proposed Sec. 106.44(g) would require a Title IX Coordinator
to offer supportive measures upon being notified of any conduct that
may constitute sex discrimination under Title IX, proposed Sec.
106.45(k)(1), as with current Sec. 106.45(b)(1)(ix), would require a
recipient to describe the range of supportive measures available to a
complainant and respondent only for grievance procedures addressing a
complaint alleging sex-based harassment.
In proposed Sec. 106.45(k)(2), the Department would also require a
recipient's grievance procedures to either describe the range of
possible disciplinary sanctions and remedies or list the possible
disciplinary sanctions and remedies that a recipient may impose after
it determines that sex-based harassment occurred.
The Department proposes clarifying that the phrase ``any
determination of responsibility'' for which sanctions and remedies must
be described or listed--as appears in current Sec. 106.45(b)(1)(vi)--
refers to a determination that sex-based harassment occurred. The
Department also proposes removing one of the two references to possible
disciplinary sanctions and remedies from this provision. As with the
range of supportive measures, the Department proposes maintaining the
requirement in the current regulations that a description of the range,
or list, of possible disciplinary sanctions and remedies that a
recipient may impose is necessary only with respect to complaints
alleging sex-based harassment. Although the proposed definitions of
``disciplinary sanctions'' and ``remedies'' in proposed Sec. 106.2
provides that disciplinary sanctions and remedies are available
following a determination that sex discrimination occurred, proposed
Sec. 106.45(k)(2) would require a recipient to describe the range, or
list, of possible disciplinary sanctions and remedies only for
grievance procedures addressing a complaint alleging sex-based
harassment.
Reasons: In proposed Sec. 106.45(k)(2), the Department proposes
replacing the reference to ``any determination of responsibility'' with
``a determination that sex-based harassment occurred.'' The Department
proposes substituting this language to align with the language used in
other provisions in the proposed regulations.
In addition, the Department proposes removing one of the references
to ``possible disciplinary sanctions and remedies'' as a non-
substantive edit to streamline the provision and avoid unnecessary
duplication of this phrase in the current regulatory text.
Although proposed Sec. 106.44(g) and the proposed definitions of
``disciplinary sanctions'' and ``remedies'' in proposed Sec. 106.2
provide that supportive measures, disciplinary sanctions, and remedies
may be utilized in response to any form of sex discrimination, not just
sex-based harassment, the Department's current view is that the
requirement to provide a range, or list, of such measures as part of a
recipient's grievance procedures should be limited to complaints
alleging sex-based harassment, consistent with the current regulations.
Considering the wide range of conduct that may constitute alleged sex
discrimination, the Department submits that it would be unduly
burdensome to a recipient to attempt to anticipate all forms of alleged
sex discrimination that may arise and the range of supportive measures
and range, or list, of disciplinary sanctions and remedies that may be
responsive to all sex discrimination. For this reason, the Department
proposes continuing to limit this aspect of the grievance procedures to
complaints of alleged sex-based harassment.
H. Grievance Procedures for the Prompt and Equitable Resolution of
Complaints of Sex-Based Harassment Involving a Student Complainant or
Student Respondent at Postsecondary Institutions
Section 106.46 Grievance Procedures for the Prompt and Equitable
Resolution of Complaints of Sex-Based Harassment Involving a Student
Complainant or Student Respondent at Postsecondary Institutions
Current regulations: None.
Proposed regulations: Proposed Sec. 106.46(a) would state that a
postsecondary institution's prompt and equitable written grievance
procedures for complaints of sex-based harassment involving a student
complainant or student respondent must include provisions that
incorporate the requirements of proposed Sec. Sec. 106.45 and 106.46.
Proposed Sec. 106.46(b) would provide factors for a recipient to apply
where a complainant or respondent is both a student and employee to
determine whether the requirements of proposed Sec. 106.46 would
apply. Proposed Sec. 106.46 would also include provisions addressing
the following aspects of a postsecondary institution's grievance
procedures for postsecondary students: written notice of allegations
and information about the recipient's grievance procedures (proposed
[[Page 41493]]
Sec. 106.46(c)); dismissal of a complaint (proposed Sec. 106.46(d));
complaint investigation (proposed Sec. 106.46(e)); evaluating
allegations and assessing credibility (proposed Sec. 106.46(f)); live
hearing procedures (proposed Sec. 106.46(g)); written determination
(proposed Sec. 106.46(h)); appeals (proposed Sec. 106.46(i)); and
informal resolution (proposed Sec. 106.46(j)).
Additional detailed explanation of the requirements of proposed
Sec. 106.46 is provided in the discussion of each subsection,
including proposed changes from current Sec. 106.45.
Section 106.46(a) General
Current regulations: None.
Proposed regulations: The Department proposes adding Sec.
106.46(a), which would provide that a postsecondary institution's
written grievance procedures for complaints of sex-based harassment
involving a student complainant or student respondent must include
provisions that incorporate the requirements of proposed Sec. 106.45
and this section.
Reasons: As explained in the discussion of the Framework for
Grievance Procedures for Complaints of Sex Discrimination (Section
II.F), the Department proposes a comprehensive framework for grievance
procedures that builds upon the grievance procedures required under the
2020 amendments, with certain modifications to address the concerns
noted above. Under the Department's proposed grievance procedures
framework, proposed Sec. 106.45 would contain requirements for written
grievance procedures that would apply to all complaints of sex
discrimination at any recipient and a new proposed Sec. 106.46 would
contain additional requirements that would apply only to complaints of
sex-based harassment involving a student complainant or student
respondent at postsecondary institutions.
The Department's current position is that the requirements in
proposed Sec. 106.46, which are incorporated from current Sec. 106.45
with modifications as explained in the discussion of proposed Sec.
106.46 (Section II.F.2.c) and in the discussion of each provision
below, would afford protections that are appropriate to the age,
maturity, independence, needs, and context of students in postsecondary
institutions.
Section 106.46(b) Student-Employees
Current regulations: None
Proposed regulations: The Department proposes adding Sec.
106.46(b), which would provide that when a complainant or respondent is
both a student and an employee of a postsecondary institution, the
postsecondary institution must make a fact-specific inquiry to
determine whether the requirements of proposed Sec. 106.46 apply. In
making this determination, a postsecondary institution must, at a
minimum, consider whether the party's primary relationship with the
postsecondary institution is to receive an education and whether the
alleged sex-based harassment occurred while the party was performing
employment-related work.
Reasons: The Department recognizes that a person may be both a
student and an employee of a postsecondary institution. When a
postsecondary institution has initiated its grievance procedures in
response to a complaint of sex-based harassment and a party is both a
student and an employee, the postsecondary institution must determine
whether that party is subject to the additional grievance procedures
specified under proposed Sec. 106.46 for investigating and resolving
allegations of sex-based harassment involving postsecondary students.
Determining whether a party is a student or employee is a fact-specific
inquiry.
To guide a postsecondary institution in making this determination,
proposed Sec. 106.46(b) would set out two factors that a postsecondary
institution must consider, at a minimum: whether the person's primary
relationship with the postsecondary institution is to receive an
education and whether the alleged sex-based harassment occurred while
the person was performing employment-related work. The Department's
tentative view is that a postsecondary institution must consider these
factors because they appropriately focus the inquiry on the primary
relationship between the complainant or respondent and the
postsecondary institution (e.g., whether the complainant or respondent
is a full-time employee who enrolls in a class outside of work hours or
a student who works part-time for the postsecondary institution as part
of the student's overall financial aid package) and the student-
employee's role or activities when the alleged sex-based harassment
occurred (e.g., whether they were in their work environment or
elsewhere fulfilling work-related responsibilities, in class as a
student, in the cafeteria with friends, or in an extracurricular
activity). Nothing in proposed Sec. 106.46(b) would prohibit a
postsecondary institution from considering additional factors in
determining whether a party is primarily a student or an employee.
Section 106.46(c) Written Notice of Allegations
Current regulations: Upon receipt of a formal complaint of sexual
harassment, current Sec. 106.45(b)(2) requires a recipient to provide
parties who are known to the recipient with written notice of the
allegations of sexual harassment and of the recipient's grievance
process, including any informal resolution process. Sufficient detail
must be provided in this notice, including the conduct allegedly
constituting prohibited sexual harassment, the identities of the
parties involved in the alleged incident, and the date and location of
the alleged incident.
In addition, current Sec. 106.45(b)(2) requires that the notice
inform the parties that they may have an advisor of their choice, who
may be an attorney, that they have a right to inspect and review
certain evidence, and of any provision in the recipient's code of
conduct that prohibits knowingly making false statements or knowingly
submitting false information during the grievance process. Section
106.45(b)(2) also provides that if, in the course of an investigation,
the recipient decides to investigate allegations about the complainant
or respondent that are not included in the initial notice, the
recipient must provide notice of the additional allegations to the
parties whose identities are known.
Proposed regulations: The Department proposes maintaining the core
components of this provision while offering several important
clarifications for postsecondary institutions when notifying the
parties of allegations of sex-based harassment in a complaint involving
a student complainant or a student respondent.
Because the proposed regulations do not include a formal complaint
requirement, the proposed regulations would clarify that written notice
of allegations must be provided upon initiation of the postsecondary
institution's sex-based harassment grievance procedures as described in
proposed Sec. 106.46. Proposed Sec. 106.46(c)(3) would include an
allowance for a reasonable extension of time to provide this written
notice of allegations to the extent a postsecondary institution has
legitimate concerns for a party's safety or the safety of any other
person as a result of the notification.
Proposed Sec. 106.46(c) would also revise the required statements
that a postsecondary institution must include in the written notice of
allegations. Under proposed Sec. 106.46(c), a postsecondary
institution would be
[[Page 41494]]
required to include the information required under proposed Sec.
106.45(c), including a statement that retaliation is prohibited. In
addition, a postsecondary institution would still be required to
include a statement that the respondent is presumed not responsible for
the alleged conduct, as in current Sec. 106.45(b)(2). Proposed Sec.
106.46(c) would also retain the requirement that a postsecondary
institution notify the parties of the right to review evidence, but the
Department proposes revising the description of this right to reflect
proposed changes to this right in proposed Sec. 106.46(e)(6).
Reasons: It is the Department's tentative view that preserving the
written notice requirement in the existing regulations, together with
several proposed changes discussed here, would maintain and strengthen
the regulations' protections for student complainants and student
respondents involved in a postsecondary institution's resolution of a
complaint of sex-based harassment. Although proposed Sec. 106.45(c)
would not apply the same written requirements to other recipients or to
postsecondary institutions in other circumstances, the Department's
proposed changes would better align the notice requirements with the
purpose of Title IX and the other proposed changes to the regulations,
as described below.
The Department proposes that the notice of allegations should be in
writing and include more detail in sex-based harassment cases involving
postsecondary students. As explained in the discussion of proposed
Sec. 106.46 (Section II.F.2.c), students at postsecondary institutions
are distinct from both elementary and secondary students and from
school employees in that postsecondary students are largely young
adults who may be expected to self-advocate in grievance procedures and
lack protections available to many employees under Title VII,
collective bargaining agreements, and tenure. The Department therefore
proposes that a written notice of allegations is particularly important
to support postsecondary students' ability to understand the
requirements of Title IX grievance procedures and to effectively
advocate for themselves.
The Department proposes removing the requirement that a recipient's
grievance procedures must be initiated by a formal complaint. As stated
in the discussion of the proposed definition of ``complaint'' (Sec.
106.2), it is the Department's tentative view, and one expressed by
stakeholders during the June 2021 Title IX Public Hearing, that this
formal complaint requirement unduly narrows the scope of a recipient's
responsibility not to discriminate based on sex in its education
program or activity. Consequently, the Department proposes revising the
definition of ``complaint'' to clarify that a complaint would be the
mechanism by which an individual may request that a recipient initiate
its grievance procedures in response to all forms of sex
discrimination, and would permit individuals to make complaints in
writing or orally to ensure that a recipient receives all complaints
that would alert it to possible sex discrimination in violation of
Title IX in its education program or activity.
Physical and emotional safety. The 2020 amendments did not address
the timing needed for proper notice of the allegations to the
respondent other than that notice be provided with sufficient time for
the respondent to prepare a response before any initial interview. It
is the Department's continuing view that the individual circumstances
of each complaint may be relevant to the timing required for notifying
the respondent of the allegations. 85 FR 30283, 30288. In particular,
the Department recognizes that there may be situations in which a
postsecondary institution may reasonably delay notice to another party
to address legitimate concerns about the safety of either party or
others, and the proposed notice requirement provides a postsecondary
institution with discretion to account for these safety concerns. This
need may arise particularly in circumstances in which a complainant has
made allegations of dating violence or domestic violence and the safety
of the complainant or others may be at heightened risk after notice is
provided to the respondent.
Proposed Sec. 106.46(c)(3) would specify that legitimate concerns
for safety must be based on individualized considerations and not on
mere speculation or stereotypes and also would clarify that any delay
must be reasonable. Further, regardless of whether the timeframe is
extended, the proposed provision would continue to require that a party
receive notice ``with sufficient time . . . to prepare a response
before any initial interview.''
Revisions to required statements. In proposed Sec. 106.46(c), the
Department proposes revising the required additional information that
must be included in the written notice of allegations. The Department's
tentative view is that a postsecondary institution should still be
required to include a statement that the respondent will be presumed
not responsible for the alleged conduct until the conclusion of the
procedures. The Department also proposes retaining in proposed Sec.
106.46(c) the requirement in current Sec. 106.45(b)(2)(i)(B) that the
written notice inform the parties of any provision in the recipient's
code of conduct that prohibits knowingly making false statements or
knowingly submitting false information during the grievance process. In
the preamble to the 2020 amendments, the Department stated ``that both
parties deserve to know that their school, college, or university has
such a provision that could subject either party to potential school
discipline as a result of participation in the Title IX grievance
process.'' Id. at 30279. This proposed provision dovetails with the
Department's recognition of the importance of truthfulness for those
providing information in grievance procedures in proposed Sec. Sec.
106.45(g) and 106.46(f), which would require a postsecondary
institution to provide a process that adequately assesses the
credibility of the parties and witnesses, to the extent credibility is
in dispute and relevant to evaluating one or more of the allegations of
sex discrimination.
OCR received feedback from the June 2021 Title IX Public Hearing
indicating that requiring recipients to include disciplinary provisions
related to false statements in a notification about allegations of sex-
based harassment risks creating the misimpression that the recipient
has reason to believe that the complainant may consider providing
knowingly false statements, or that individuals are especially likely
to knowingly make false statements in sex-based harassment matters. The
Department recognizes this concern and seeks to clarify that the
inclusion of such a statement is not meant to imply in any way that any
party to a recipient's grievance procedures would be presumed to be
making a false statement. Nor is it intended to suggest that it would
be a false statement if a report or allegation of misconduct does not
align in all respects with the statement of other witnesses or parties,
or that it would be a false statement if a respondent or witness
disagrees with the allegations, or an allegation contains unintentional
inaccuracies. As generally understood, a false statement is one that a
person makes knowing that the statement is false or that the person
makes in bad faith. A good faith mistake would generally not constitute
a false statement. Further, proposed Sec. 106.45(h)(5) would, like the
current regulations, specifically prohibit a recipient from
disciplining a party, witness, or other participant in a
[[Page 41495]]
recipient's grievance procedures for making a false statement based
solely on the recipient's determination of whether sex discrimination
occurred.
As described in the discussion of proposed Sec. 106.45(c), the
Department also proposes requiring a postsecondary institution to
include a statement in the notice of allegations that retaliation is
prohibited. OCR received feedback from student complainants in the June
2021 Title IX Public Hearing and in listening sessions describing
retaliation by respondents and respondents' friends that they
experienced after coming forward with information about sex-based
harassment. The proposed change would serve the purpose of alerting the
parties early in the grievance procedures, at the first time they
receive notice from the postsecondary institution regarding each
other's identity and the specific allegations at issue, that
retaliation based on participation in the grievance procedures is
prohibited for parties and others.
Proposed Sec. 106.46(c), by incorporating the requirements of
proposed Sec. 106.45(c), would preserve the requirement in the current
regulations that a recipient provide written notice of additional
allegations to the parties if, in the course of an investigation, the
postsecondary institution decides to investigate additional allegations
about the respondent that were not included in the initial notice. The
reasons for maintaining and clarifying this requirement are explained
in more detail in the discussion of proposed Sec. 106.45(c).
Section 106.46(d) Dismissal of a Complaint
Current regulations: Current Sec. 106.45(b)(3)(ii) states that a
recipient may dismiss a formal complaint or any allegations therein if
at any time during the investigation or hearing a complainant notifies
the Title IX Coordinator in writing that the complainant would like to
withdraw the formal complaint or any allegations therein. Current Sec.
106.45(b)(3)(iii) states that upon a dismissal required or permitted
pursuant to Sec. 106.45(b)(3)(i) or (ii), the recipient must promptly
send written notice of the dismissal and reason(s) therefor
simultaneously to the parties.
Proposed regulations: Proposed Sec. 106.46(d)(1) would provide
that when a postsecondary institution dismisses a complaint of sex-
based harassment involving a student party under any of the bases in
proposed Sec. 106.45(d)(1), it must provide the parties with
simultaneous written notice of the dismissal and the basis for the
dismissal. Proposed Sec. 106.46(d)(2) would provide that when a
postsecondary institution dismisses a sex-based harassment complaint
involving a student complainant or a student respondent based on the
complainant's voluntary withdrawal of the complaint or allegations
under proposed Sec. 106.45(d)(1)(iii), a postsecondary institution
must obtain the complainant's withdrawal in writing.
Reasons: Proposed Sec. 106.46(d)(1) would maintain the requirement
that a postsecondary institution, upon dismissing a sex-based
harassment complaint involving a student complainant or student
respondent, notify the parties simultaneously in writing of the
dismissal and the basis for the dismissal. Although proposed Sec.
106.45(d) would not apply the same written requirements to other
recipients or to postsecondary institutions in other circumstances, the
Department's tentative position is that it is important to require a
postsecondary institution to notify the parties simultaneously in
writing of the dismissal of a complaint or allegations, whether by
electronic mail or other means. As noted in discussion of proposed
Sec. 106.46 (Section II.F.2.c), the Department's tentative view is
that requiring in proposed Sec. 106.46(d)(1) that notice of a
dismissal be in writing is appropriate in light of the particular
circumstances of postsecondary students and the requirement that a
recipient not discriminate based on sex in its education program or
activity, including in its handling of discrimination complaints.
In addition, proposed Sec. 106.46(d)(2) would maintain the
requirement from the 2020 amendments that a complainant's request for
voluntary dismissal of a complaint or complaint allegations must be
made in writing to the Title IX Coordinator, for postsecondary student
complainants alleging sex-based harassment. The Department understands
``written request'' to include a request delivered to the Title IX
Coordinator in person, by mail, by electronic mail, and by any
additional method designated by the recipient, including an online
portal that indicates that the complainant is the person requesting
withdrawal of the allegations. This is consistent with current Sec.
106.30, which requires a ``formal complaint'' to be in writing and
filed with the Title IX Coordinator. See 85 FR 30137 (``We have further
revised this provision [Sec. 106.30] to state that `document filed by
a complainant' means a document or electronic submission (such as by
electronic mail or through an online portal provided for this purpose
by the recipient) that . . . indicates that the complainant is the
person filing the formal complaint.''). As noted in the discussion of
proposed Sec. 106.46 (Section II.F.2.c), the Department's tentative
view is that it is appropriate in light of the particular circumstances
of postsecondary students and Title IX's nondiscrimination guarantee to
preserve the requirements that postsecondary institutions communicate
with parties in writing about withdrawals of allegations or complaints
or about dismissals related to sex-based harassment involving a student
party.
Section 106.46(e) Complaint Investigation
Current regulations: Section 106.45(b)(5) sets out seven
requirements that apply during the investigation of a formal complaint
and throughout the sexual harassment grievance process.
Proposed regulations: Proposed Sec. 106.46(e) would set out six
requirements that apply--in addition to the requirements set out in
proposed Sec. 106.45--in a postsecondary institution's grievance
procedures for sex-based harassment complaints involving a student
complainant or a student respondent.
Reasons: The proposed regulations would retain many of the specific
requirements for grievance procedures that appear in the existing
regulations at Sec. 106.45(b)(5), although the proposed regulations
would also move, modify, or add certain requirements. The Department
proposes making minor adjustments to the introductory language to be
consistent with changes made throughout the regulations, including by
clarifying that the proposed requirements in Sec. 106.46 would cover
sex-based harassment rather than only sexual harassment and would apply
only to complaints of sex-based harassment involving a student
complainant or student respondent at a postsecondary institution. In
addition, the Department proposes to refer to the proceedings described
in Sec. 106.46 as ``grievance procedures'' rather than ``grievance
process,'' and would remove the reference to a ``formal complaint.''
Section 106.46(e)(1) Notice in Advance of Meetings
Current regulations: Section 106.45(b)(5)(v) requires a recipient
to provide written notice of the date, time, location, participants,
and purpose of all hearings, investigative interviews, or other
meetings. A recipient must provide this notice to any party whose
[[Page 41496]]
participation is invited or expected, and it must provide this notice
with sufficient time for the party to prepare to participate.
Proposed regulations: Proposed Sec. 106.46(e)(1) would require a
postsecondary institution to provide written notice of the date, time,
location, participants, and purpose of all meetings, investigative
interviews, and hearings. A postsecondary institution would be required
to provide this notice to any party whose participation is invited or
expected at a meeting, interview, or hearing with sufficient time for
the party to prepare to participate.
Reasons: The Department proposes moving the provision requiring
written notice of any meetings from current Sec. 106.45(b)(5)(v) to
proposed Sec. 106.46(e)(1) without any substantive changes to the
text, other than the overall change in applicability only to complaints
of sex-based harassment involving a student complainant or respondent
at a postsecondary institution.
In the preamble to the 2020 amendments, the Department stated that
``the burden associated with providing this notice [required by current
Sec. 106.45(b)(5)(v)] is outweighed by the due process protections
such notice provides.'' 85 FR 30299. The Department further noted that
the parties should receive notice with sufficient time to prepare for
meetings, interviews, or hearings ``[b]ecause the stakes are high for
both parties in a grievance process.'' Id. As explained in the
discussion of proposed Sec. 106.46 (Section II.F.2.c), the Department
recognizes the need to tailor the requirements for grievance procedures
to the unique context of sex-based harassment complaints involving
postsecondary student parties. In light of the age, maturity, and
independence of postsecondary students, the Department currently views
the detailed requirements related to advance notice of meetings,
interviews, or hearings as necessary to provide a postsecondary student
with time to prepare and possibly to consult others for help with
preparation. The Department recognizes that many postsecondary students
are only newly independent and typically have less experience with
self-advocacy than parents, guardians, or other legally authorized
representatives of students in elementary school and secondary school
settings or than employees, who may also have additional rights under
Title VII, collective bargaining agreements, or other employment-
related agreements with the recipient. Finally, the Department
recognizes that postsecondary institutions are separately required by
the Clery Act to provide ``timely notice of meetings'' where one or
more parties may be present in proceedings based on an allegation of
dating violence, domestic violence, sexual assault, or stalking. See 34
CFR 668.46(k)(3)(i)(B)(2).
Section 106.46(e)(2) Role of Advisor
Current regulations: Section 106.45(b)(5)(iv) requires a recipient
to provide the parties with the same opportunities to have others
present during any grievance proceeding, including the opportunity to
be accompanied to any related meeting or proceeding by the advisor of
their choice. This subsection states that the advisor of choice may be,
but is not required to be, an attorney. In addition, current Sec.
106.45(b)(5)(iv) states that a recipient cannot limit the choice or
presence of the advisor for either party in any meeting or grievance
proceeding; however, the recipient may establish restrictions regarding
the extent to which the advisor may participate, as long as the
restrictions apply equally to both parties.
Proposed regulations: Proposed Sec. 106.46(e)(2) would require a
postsecondary institution to provide the parties with the same
opportunities to be accompanied to any meeting or proceeding by the
advisor of their choice. This provision, like proposed Sec.
106.46(c)(2)(ii) and (f)(1), would provide that the advisor may be, but
is not required to be, an attorney. The proposed regulations would
prohibit a postsecondary institution from limiting the choice or
presence of the advisor in any meeting or grievance proceeding;
however, the proposed regulations would permit the postsecondary
institution to establish restrictions regarding the extent to which the
advisor may participate in the grievance procedures, as long as the
restrictions apply equally to the parties.
Reasons: Current Sec. 106.45(b)(5)(iv) addresses the requirements
for the parties' advisors, as well as the requirements for who may
attend proceedings. The proposed regulations would retain both sets of
requirements but divide them into separate provisions--proposed Sec.
106.46(e)(2) and (3)--for clarity.
With respect to advisors, current Sec. 106.45(b)(5)(iv) requires a
recipient to provide parties with the opportunity to be accompanied to
any meeting or proceeding by the advisor of their choice. The current
provision also notes that the advisor may be, but is not required to
be, an attorney. In addition, the current provision states that the
recipient must not limit the choice or presence of the advisor for
either the complainant or the respondent; however, the recipient may
limit the extent to which the advisor may participate, as long as the
restrictions apply equally to both parties. The Department proposes to
retain these requirements in proposed Sec. 106.46(e)(2). The
Department proposes two non-substantive changes: removing the word
``either'' because it is unnecessary and replacing the term ``both
parties'' with ``the parties'' since some proceedings may involve more
than two parties.
As explained in the discussion of the Framework for Grievance
Procedures for Complaints of Sex Discrimination (Section II.F),
students at postsecondary institutions are, generally, differently
situated from other participants in a recipient's grievance procedures
in a way that the Department currently believes warrants the proposed
right to an advisor under Sec. 106.46(e)(2) when they are a party in a
recipient's grievance procedures for complaints of sex-based
harassment. For example, unlike elementary school and secondary school
students, postsecondary students generally would not be entitled to a
parent, guardian, or other authorized legal representative at meetings
or proceedings, yet they may also not have sufficient experience with
self-advocacy or maturity to participate in meetings or proceedings
without the assistance of an advisor. And while employees may have
access to a union representative or other employee-specific resources,
postsecondary students do not generally have comparable resources
available to them.
In addition, postsecondary students who are participating in
grievance procedures for complaints of sex-based harassment are
differently situated from postsecondary students who are participating
in grievance procedures for complaints of sex discrimination other than
sex-based harassment. Unlike many complaints of sex discrimination,
complaints of sex-based harassment often involve multiple parties whose
conduct and credibility are subjected to scrutiny. Investigations of
complaints of sex-based harassment are more likely to involve sensitive
material and to engender disputes over what evidence is relevant and
what evidence is impermissible. Sex-based harassment complaints
involving postsecondary students will often involve a student
respondent who faces a potential disciplinary sanction. The Department
currently believes that these features of the sex-based harassment
grievance procedures support the proposed right to an advisor for
postsecondary students
[[Page 41497]]
in grievance procedures for complaints of sex-based harassment but not
for complaints of other types of sex discrimination.
The Department also emphasizes that in grievance procedures when
one party is a postsecondary student and another party is not, proposed
Sec. 106.46(e)(2) would require a postsecondary institution to permit
the non-student party the same opportunity for an advisor as the
postsecondary student to ensure equitable opportunity to participate,
as would be required by proposed Sec. 106.45(b)(1). In addition, as
explained in the discussion of proposed Sec. 106.46(f)(1), for a
postsecondary institution that exercises its discretion to conduct live
hearings with advisor-conducted questioning under proposed Sec.
106.46(f)(1), advisors would be a necessary component of that process.
The Department also notes that in proceedings based on an allegation of
dating violence, domestic violence, sexual assault, or stalking,
postsecondary institutions are separately required by the Clery Act to
provide the parties with the opportunity to be accompanied to any
meeting or proceeding by an advisor of their choice. See 34 CFR
668.46(k)(2)(iii).
Section 106.46(e)(3) Individuals Present at Proceedings
Current regulations: Section 106.45(b)(5)(iv) requires a recipient
to provide the parties with the same opportunities to have others
present during any grievance proceeding.
Proposed regulations: Proposed Sec. 106.46(e)(3) would require a
postsecondary institution to provide the parties with the same
opportunities, if any, to have persons other than the advisor of the
parties' choice present during any meeting or proceeding.
Reasons: Current Sec. 106.45(b)(5)(iv) requires a recipient to
provide parties with the same opportunities to have individuals present
during any grievance proceeding. The Department proposes retaining this
requirement at proposed Sec. 106.46(e)(3) with minor modifications.
Proposed Sec. 106.46(e)(3) would clarify that a postsecondary
institution may permit these individuals to attend any meeting or
proceeding during the grievance procedures in matters of sex-based
harassment involving a student complainant or student respondent.
The Department also proposes adding ``if any'' to this provision to
make clear that a postsecondary institution generally would have the
discretion not to permit parties to bring individuals other than their
advisor of choice to meetings or proceedings. However, there are
certain situations in which postsecondary institutions may need to
permit a party to have another person, in addition to an advisor,
present during any meeting or proceeding in order to ensure that all
parties, witnesses, and others participating can engage fully in the
grievance procedures as required by Title IX. In particular, a
postsecondary institution must comply with its obligations to ensure
effective communication for persons with disabilities through the
provision of auxiliary aids and services (such as providing a sign
language interpreter for a party who is deaf or hard of hearing) and by
making reasonable modifications to policies, practices, and procedures
to avoid discrimination on the basis of disability. In addition, a
postsecondary institution may need to provide language assistance
services, such as translations or interpretation for persons with
limited English proficiency. In these circumstances, a postsecondary
institution would need to provide the parties with the same
opportunities to have necessary support persons, although this may mean
that only one party (e.g., the party with a disability) is permitted to
have another person present. The Department also notes that when the
allegation involves dating violence, domestic violence, sexual assault,
or stalking, the Clery Act requires separately requires postsecondary
institutions to provide the parties with the same opportunities to have
individuals present during any disciplinary proceeding. See 34 CFR
668.46(k)(2)(iii).
Section 106.46(e)(4) Expert Witnesses
Current regulations: Section 106.45(b)(5)(ii) requires a recipient
to provide an equal opportunity for the parties to present witnesses,
including fact and expert witnesses, and to present other inculpatory
and exculpatory evidence.
Proposed regulations: The Department proposes modifying the
requirement that a recipient provide an equal opportunity for parties
to present expert witnesses. Proposed Sec. 106.46(e)(4) would provide
a postsecondary institution with the discretion to determine whether to
allow the parties to present expert witnesses as long as the
determination of whether to permit expert witnesses applies equally to
the parties.
Reasons: The Department proposes revising the requirement in
current Sec. 106.45(b)(5)(ii) that a recipient must provide an equal
opportunity for the parties to present expert witnesses by permitting a
postsecondary institution discretion to determine whether the parties
may present an expert witness--provided that this determination applies
equally to the parties. Under proposed Sec. 106.46(e)(4), the
postsecondary institution would be permitted to exercise this
discretion by deciding to allow each party to use experts, to not to
allow any experts, or to use its own expert in lieu of experts
presented by the parties.
Following the implementation of the 2020 amendments, stakeholders
urged the Department to amend the regulations to provide recipients
with discretion to determine whether parties may present expert
witnesses, as long as the opportunity to present or not to present
experts is provided equally to the parties. The Department recognizes
that expert witnesses would not have observed the alleged conduct
(unlike relevant fact witnesses, which a party has a right to present
under current Sec. 106.45(b)(5)(ii) and proposed Sec. 106.45(f)(2))
and may not be necessary or helpful to the recipient in determining
whether sex-based harassment occurred. Thus, the Department's current
position is that a postsecondary institution would be in the best
position to identify whether a particular case might benefit from
expert witnesses. A postsecondary institution should also consider
whether an expert witness would impede a prompt resolution to the
grievance procedures due to the time that may be needed to hire an
expert witness, for the expert witness to review the necessary
information and formulate an opinion, and to arrange for the expert's
attendance at any pertinent meetings or proceedings.
Although a postsecondary institution would have discretion on how
to proceed in allowing expert witnesses under proposed Sec.
106.46(e)(4), it would be required to apply any determination equally
to the parties. When no experts are allowed or the postsecondary
institution decides to use its own expert, this determination would
have to be applied to all parties. When a postsecondary institution
decides to permit parties to present expert witnesses, the
postsecondary institution would need to apply the same standards to
determinations about the expert's participation and scope of testimony
to all parties. Proposed Sec. 106.46(e)(4) would not preclude a
postsecondary institution from determining that the expert testimony of
one party is permissible while another party's expert testimony is not,
but it would require that a postsecondary institution apply the same
standards to all parties in determining what evidence is permissible.
The postsecondary
[[Page 41498]]
institution would also need to comply with the requirements of proposed
Sec. 106.45(b)(6) and (7) in evaluating relevant and not otherwise
impermissible evidence.
Section 106.46(e)(5) Timeframes
Current regulations: Section Sec. 106.45(b)(1)(v) states that,
with respect to a recipient's grievance process for formal complaints
of sexual harassment, the recipient must include reasonably prompt
timeframes for conclusion of the grievance process, including
reasonably prompt timeframes for filing and resolving appeals and
informal resolution processes if the recipient offers informal
resolution processes, and a process that allows for the temporary delay
of the grievance process or the limited extension of timeframes for
good cause with written notice to the complainant and the respondent of
the delay or extension and the reasons for the action. Good cause may
include considerations such as the absence of a party, a party's
advisor, or a witness; concurrent law enforcement activity; or the need
for language assistance or accommodation of disabilities.
Proposed regulations: The Department proposes adding a provision at
proposed Sec. 106.46(e)(5) to clarify that a postsecondary institution
investigating and resolving a sex-based harassment complaint involving
a student complainant or student respondent must allow for reasonable
extension of timeframes in its grievance procedures on a case-by-case
basis for good cause with written notice to the parties that includes
the reason for delay.
Reasons: The Department's proposed regulations would clarify that a
postsecondary institution's investigation and resolution of a sex-based
harassment complaint involving a student complainant or student
respondent would need to comply not only with the timeframe
requirements set out in proposed Sec. 106.45(b)(4) but also with the
requirement in proposed Sec. 106.46(e)(5) that it provide written
notice for any reasonable extension of timeframes in its grievance
procedures. The Department further proposes that any written notice
from a postsecondary institution to the parties would need to include
the reason for delay. These writing requirements are consistent with
current Sec. 106.45(b)(1)(v). It is the Department's tentative view
that preserving the requirement that a postsecondary institution must
provide notice of a reasonable extension of timeframes in writing is
appropriate in light of the particular circumstances of postsecondary
students and the requirement that a recipient not discriminate based on
sex in its education program or activity.
The Department emphasizes that proposed Sec. 106.46(e)(5) would
not constitute an additional basis for granting extensions beyond
proposed Sec. 106.45(b)(4). A postsecondary institution would need to
continue to evaluate any possible extension of timeframes on a case-by-
case basis and such extensions must be allowed only for good cause, as
required by proposed Sec. 106.45(b)(4).
Section 106.46(e)(6) Access to Relevant and Not Otherwise Impermissible
Evidence
Current regulations: Section 106.45(b)(5)(vi) requires a recipient
to provide both parties with an equal opportunity to inspect and review
any evidence obtained as part of the investigation that is directly
related to the allegations raised in a formal complaint, including
evidence upon which the recipient does not intend to rely in reaching a
responsibility determination and inculpatory or exculpatory evidence
whether obtained from a party or other source. The provision indicates
that this opportunity to review the evidence should enable each party
to meaningfully respond to the evidence prior to conclusion of the
investigation. In addition, current Sec. 106.45(b)(5)(vi) requires a
recipient to send this evidence in an electronic format or a hard copy
to each party and the party's advisor prior to the completion of the
investigative report. The current regulations specify that the parties
must have at least ten days to submit a written response, which the
investigator must consider prior to the completion of the investigative
report. Current Sec. 106.45(b)(5)(vi) also requires a recipient to
make all of the evidence subject to the parties' inspection and review
available at any hearing so that the parties have an equal opportunity
to refer to the evidence during the hearing, including for purposes of
cross-examination.
Current Sec. 106.45(b)(5)(vii) requires a recipient to create an
investigative report that fairly summarizes the relevant evidence. This
provision specifies that a recipient must send the investigative report
in an electronic format or a hard copy to the parties and their
advisors for their review and written response. The recipient must
provide the report at least ten days prior to a hearing (if one is
required or otherwise provided) or prior to the time of the
responsibility determination.
Proposed regulations: Proposed Sec. 106.46(e)(6) would require a
postsecondary institution to provide parties and their advisors, if
any, with equitable access to evidence that is relevant to the
allegations of sex-based harassment and not otherwise impermissible, as
described in proposed Sec. Sec. 106.2 and 106.45(b)(7). Under proposed
Sec. 106.46(e)(6)(i), a postsecondary institution must provide either
equitable access to the relevant and not otherwise impermissible
evidence, or it must provide the parties with the same written
investigative report that accurately summarizes this evidence. If a
postsecondary institution chooses to provide an investigative report
and then a party requests access to the evidence, the institution would
be required to provide all parties with equitable access to the
relevant and not otherwise impermissible evidence.
Proposed Sec. 106.46(e)(6)(ii) would require a postsecondary
institution to provide the parties with a reasonable opportunity to
review and respond to the evidence as described in the investigative
report or as provided to the parties prior to the determination of
whether sex-based harassment occurred. In addition, if a postsecondary
institution conducts a live hearing as part of its grievance
procedures, proposed Sec. 106.46(e)(6)(ii) would require the
institution to provide the opportunity to review the evidence in
advance of the live hearing; however, the proposed regulations would
allow the postsecondary institution to decide whether to provide the
opportunity to respond to the evidence prior to the hearing, during the
hearing, or both prior to and during the hearing.
Proposed Sec. 106.46(e)(6)(iii) would require a postsecondary
institution to take reasonable steps to prevent and address any
unauthorized disclosures by the parties and their advisors of
information and evidence obtained solely through the sex-based
harassment grievance procedures.
Finally, proposed Sec. 106.46(e)(6)(iv) would clarify that
compliance with proposed Sec. 106.46(e)(6) would satisfy the
requirements of proposed Sec. 106.45(f)(4).
Reasons: Current Sec. 106.45(b)(5)(vi) requires a recipient to
provide the parties with an equal opportunity to review and respond to
evidence obtained during the investigation, and current Sec.
106.45(b)(5)(vii) requires a recipient to create an investigative
report summarizing the relevant evidence for the parties' review and
response. The Department proposes modifying and merging these
requirements in proposed Sec. 106.46(e)(6).
Scope of evidence provided to the parties. Current Sec.
106.45(b)(5)(vi) requires the recipient to provide the
[[Page 41499]]
parties with an equal opportunity to inspect and review any evidence
obtained as part of the investigation that is directly related to the
allegations raised in a formal complaint. The current regulations
distinguish between evidence that is directly related to the
allegations, to which the recipient must provide the parties with
access, and relevant evidence, which the recipient must evaluate (Sec.
106.45(b)(1)(ii)), include in the investigative report (Sec.
106.45(b)(5)(vii)), and permit questions about (Sec. 106.45(b)(6)).
The current regulations require that if the recipient obtains evidence
related to a complainant's sexual predisposition or prior sexual
behavior that is directly related to the allegations, it should
disclose it to both parties, see 85 FR 30428, even though evidence
about a complainant's sexual predisposition ``would never be included
in the investigative report and evidence about a complainant's prior
sexual behavior would be included only if it meets one of the two
narrow exceptions,'' id. at 30304. Similar restrictions on the use of
evidence about a complainant's sexual predisposition or prior sexual
behavior, as well as questions seeking this evidence, apply at a live
hearing and to written questions (and their answers) at current Sec.
106.45(b)(6)(ii).
In the preamble to the 2020 amendments, the Department stated that
evidence should be disclosed to the extent it is ``directly related''
to the allegations and that ``directly related may sometimes encompass
a broader universe of evidence than evidence that is `relevant.' '' Id.
OCR received feedback during the June 2021 Title IX Public Hearing that
the distinction in the current regulations between evidence that is
directly related to the allegations and relevant evidence is confusing
and not well-delineated. One stakeholder expressed confusion as to why
a recipient should provide access to evidence that is not relevant to
the incident, and another commenter noted that discovery rules do not
require production of irrelevant and confidential materials in court.
OCR also received feedback in connection with the June 2021 Title IX
Public Hearing urging the Department to use a relevance standard for
the provision of evidence to the parties. The Department's tentative
view is that these comments highlight significant issues associated
with the current regulations on access to evidence that may interfere
with a recipient's ability to comply with their Title IX obligations.
To assist recipients (and parties) in determining the scope of
permissible evidence, the Department proposes merging the ``directly
related'' and ``relevant'' evidentiary standards by defining
``relevant'' in proposed Sec. 106.2 as evidence related to the
allegations of sex discrimination. Because relevant evidence includes
all evidence related to the allegations of sex discrimination under
investigation, any evidence that is directly related to the allegations
would necessarily be considered evidence that is related to the
allegations. Therefore, it is the Department's tentative view that once
the term ``relevant'' is properly defined within the regulations, the
proposed regulations would require a similar universe of evidence to be
made available to the parties with one exception: unlike the current
regulations, the proposed regulations would prohibit a postsecondary
institution from disclosing evidence of the complainant's sexual
interests and prior sexual conduct, except as narrowly permitted by
proposed Sec. 106.45(b)(7).
In the preamble to the 2020 amendments, the Department explained
that using the ``[directly related] approach balances the recipient's
obligation to impartially gather and objectively evaluate all relevant
evidence . . . with the parties' equal right to participate in
furthering each party's own interests by identifying evidence
overlooked by the investigator and evidence the investigator
erroneously deemed relevant or irrelevant and making arguments to the
decision-maker regarding the relevance of evidence and the weight or
credibility of relevant evidence.'' Id. at 30303. The Department also
stated in the preamble that ``[t]he parties should have the opportunity
to argue that evidence directly related to the allegations is in fact
relevant (and not otherwise barred from use under Sec. 106.45), and
parties will not have a robust opportunity to do this if evidence
related to the allegations is withheld from the parties by the
investigator.'' Id. at 30304. The Department further explained that the
use of the ``directly related'' standard provides the parties with
access to ``the universe of relevant and potentially relevant
evidence'' with enough time for them to offer additional relevant facts
and witnesses. Id. at 30303. The Department stated that it was
``sensitive to commenters' concerns regarding the parties sharing
irrelevant information, as well as relevant information that is
relevant but also highly sensitive and personal, as part of the
investigative process''; however, the Department stated that such
concerns ``must be weighed against the demands of due process and
fundamental fairness, which require procedures designed to promote
accuracy through meaningful participation of the parties.'' Id.
Nevertheless, the Department noted that ``it may be true in some
respects that this provision affords parties greater protection than
some courts have determined is required under constitutional due
process or concepts of fundamental fairness.'' Id.
By defining ``relevant'' evidence in proposed Sec. 106.2 to
encompass all evidence related to the allegations of sex
discrimination, the Department would address the concern previously
expressed by the Department that an investigator might erroneously
screen out evidence related to the allegations that the investigator
believed to be related but not relevant. In addition, in response to
the concern previously expressed by the Department that the parties
must have the opportunity to offer additional relevant evidence after
reviewing the universe of evidence directly related to the allegations,
the Department would require a postsecondary institution to give the
parties an opportunity to respond to the evidence prior to the
determination of whether sex-based harassment occurred.
After considering the issue, including views expressed by a wide
array of stakeholders to OCR in connection with the June 2021 Title IX
Public Hearing and in listening sessions, the Department thus proposes
clarifying the scope of evidence that a postsecondary institution must
disclose. Under proposed Sec. 106.46(e)(6), a postsecondary
institution would be required to provide equitable access to evidence
that is ``relevant,'' as defined by proposed Sec. 106.2, to the
allegations of sex-based harassment, and not otherwise deemed
impermissible regardless of relevance, as set out in proposed Sec.
106.45(b)(7). The proposed provision would prohibit a postsecondary
institution from disclosing information that is not relevant and
evidence that is impermissible, including evidence of the complainant's
sexual interests and prior sexual conduct, except as narrowly permitted
by Sec. 106.45(b)(7).
In addition, the Department has reweighed the facts and
circumstances in light of the concerns expressed by stakeholders
regarding the disclosure of information related to the complainant's
sexual interests and prior sexual conduct. Considering the significant
concerns that the current provision may incentivize the introduction of
prejudicial information, chill reporting, and unnecessarily harm the
parties, the Department does not view the requirements to disclose
irrelevant evidence, as well as relevant but
[[Page 41500]]
impermissible evidence, as furthering the fairness and accuracy of the
process.
Method of providing evidence to the parties. Current Sec.
106.45(b)(5)(vi) requires a recipient to provide the parties with the
opportunity to inspect and review evidence directly related to the
allegations, and current Sec. 106.45(b)(5)(vii) requires a recipient
to provide the parties with an investigative report summarizing the
relevant evidence. In contrast, proposed Sec. 106.46(e)(6)(i) would
require a postsecondary institution to provide the parties and their
advisors, if any, either with access to the relevant and not otherwise
impermissible evidence, or with the same written investigative report
that accurately summarizes the relevant and not otherwise impermissible
evidence. If the postsecondary institution chooses to provide an
investigative report and a party requests access to the evidence, the
institution would be required to provide access to the relevant and not
otherwise impermissible evidence to all parties. Accordingly, parties
would retain under the proposed regulations the right set out under
current Sec. 106.45(b)(5)(vi) subject to the limitation on access to
evidence that is not relevant or is otherwise impermissible as
discussed above.
In the preamble to the 2020 amendments, the Department recognized
the concerns expressed by many stakeholders about the burden and costs
that current Sec. 106.45(b)(5)(vi) and (vii) may place on a recipient.
In the preamble, the Department agreed that ``these provisions have the
potential to generate modest burden and costs, but believe[d] that the
financial costs and administrative burdens resulting from the
provisions are far outweighed by the due process protections ensured by
these provisions.'' Id. at 30307. The Department stated that disclosing
evidence to the parties is not an ``unacceptable burden[ ] . . .
because reviewing the universe of evidence that is, or may be, relevant
represents a critical part of enabling parties to have a meaningful
opportunity to be heard, which is an essential component of due process
and fundamental fairness.'' Id.
After considering the issue and reweighing the facts and
circumstances, the Department proposes giving a postsecondary
institution the discretion to decide whether to provide access to the
relevant and not otherwise impermissible evidence or to provide an
investigative report that accurately summarizes the relevant and not
otherwise impermissible evidence and then provide access to the
evidence if requested by one or more parties. Postsecondary
institutions vary greatly in terms of size, resources, and expertise,
and complaints of sex-based harassment also vary greatly in terms of
the nature of the conduct alleged, the volume and format of the
evidence, and in other ways. Proposed Sec. 106.46(e)(6)(i) would give
more flexibility to a postsecondary institution than the current
regulations in the manner of presenting the evidence to the parties
while ensuring that grievance procedures remain equitable and that the
institution can meet its Title IX obligation to provide its program or
activity free from sex discrimination.
Either option under proposed Sec. 106.46(e)(6)--providing an
investigative report or the evidence itself--would enable the parties
to access the universe of evidence relevant to the allegations of sex-
based harassment. In turn, this would enable the parties to
meaningfully prepare arguments, contest the relevance of evidence, and
present additional evidence for consideration. The Department
tentatively views the requirement to convey the same universe of
evidence in two different formats (an investigative report and access
to the evidence) as unnecessary for ensuring that grievance procedures
are implemented equitably and effectively, and as increasing costs,
burden, and delay without providing a meaningful benefit to the
parties.
Finally, proposed Sec. 106.46(e)(6)(iv) would clarify that
compliance with proposed Sec. 106.46(e)(6) would satisfy the
requirements of proposed Sec. 106.45(f)(4). Proposed Sec.
106.45(f)(4) requires recipients to provide the parties with a
description of the evidence that is relevant to the allegations of sex
discrimination and not otherwise impermissible, as well as a reasonable
opportunity to respond.
Equitable access to the evidence. Proposed Sec. 106.46(e)(6) would
require a postsecondary institution to provide equitable access to the
relevant and not otherwise impermissible evidence. This would mean, for
example, that a postsecondary institution could not choose to provide
access to the evidence to one party and an investigative report to the
other party or parties. The requirement to provide equitable access
would also extend to the mode of delivery. Under proposed Sec.
106.46(e), if a postsecondary institution provides an electronic copy
of the relevant evidence to one party, the institution would be
required to do the same for all parties. If a postsecondary institution
permits a party only to inspect and review the evidence without
providing that party their own copy, the institution would not be
permitted to provide a physical copy to another party. If, however, a
party needs to access the evidence in a particular mode due to a
disability, a postsecondary institution would be required to comply
with its obligations to ensure effective communication through the
provision of auxiliary aids and services. For persons with limited
English proficiency, a postsecondary institution may need to provide
language assistance services, such as translations or interpretation.
To comply with the requirement under proposed Sec. 106.46(e)(6) to
provide equitable access to the evidence, a postsecondary institution
would also be required to be mindful of any extenuating circumstances
(e.g., one party is studying abroad) that affect a party's ability to
access the evidence in a particular manner.
Beyond the general requirement for equitable access to the relevant
evidence, the Department is not proposing specific requirements for the
manner of providing the investigative report or the evidence to the
parties. A postsecondary institution would have the discretion to
determine how to provide this information, as long as the parties and
their advisors have a meaningful opportunity to review the information.
As discussed below, proposed Sec. 106.46(e)(6)(iii) would require a
postsecondary institution to take reasonable steps to prevent
unauthorized disclosure of information and evidence. The manner of
providing the information to the parties may vary depending on the
available resources to the institution, the location of the parties,
the type of evidence, and other case-specific circumstances. The
Department seeks to provide this flexibility to postsecondary
institutions while ensuring meaningful review and protection of the
information.
Timeframe for receiving and responding to the evidence. The current
regulations set out very specific timeframes for providing the parties
with access to the evidence and a copy of the investigative report.
Current Sec. 106.45(b)(5)(vi) requires the recipient to give the
parties at least 10 days to submit a response after reviewing the
evidence. The investigator must then consider any response and then
create an investigative report. The recipient must provide the
investigative report to the parties at least 10 days prior to a hearing
(if one is required under current Sec. 106.45) or other time of
determination regarding responsibility.
Following the implementation of the 2020 amendments, OCR received
feedback from stakeholders in listening sessions and in comments
provided in
[[Page 41501]]
connection with the June 2021 Title IX Public Hearing that the rigid
timeframes in the current regulations prolong the process and impede
prompt resolutions. One organization urged the Department to make the
process simpler and more streamlined, noting that the current
provisions could add a delay of nearly one month between the close of
interviews and the start of a hearing. A comment from a coalition of
organizations urged the Department to permit greater flexibility for
recipients and to permit ``simplified procedures with shorter
timelines'' in certain cases, such as those involving detentions and
brief suspensions. OCR has also received comments indicating that the
ten-day timelines are reasonable timeframes or even too short. In the
preamble to the 2020 amendments, the Department stated that ``the time
frame is appropriate for the parties to read and respond to the
evidence subject to inspection and review, and then to the
investigative report.'' 85 FR 30306.
After considering the issue and reweighing the facts and
circumstances, including feedback received in connection with the June
2021 Title IX Public Hearing, the Department proposes in Sec.
106.46(e)(6)(ii) to remove the specific timeframes and instead permit a
postsecondary institution flexibility to set reasonable timeframes for
ensuring that parties have a reasonable opportunity to review and
respond to evidence. When the grievance procedures do not involve a
live hearing, proposed Sec. 106.46(e)(6)(ii) would require a
postsecondary institution to provide the parties with a reasonable
opportunity to review and respond to the evidence prior to the
determination of whether sex-based harassment occurred. When a
postsecondary institution conducts a live hearing as part of its
grievance procedures, proposed Sec. 106.46(e)(6)(ii) would require the
institution to provide the parties with the opportunity to review the
evidence in advance of the live hearing. This provision would allow the
postsecondary institution to decide whether to provide the opportunity
to respond to the evidence prior to the hearing, during the hearing, or
both prior to and during the hearing.
The nature and volume of evidence varies greatly based on the
allegations in a complaint and the surrounding circumstances. The
Department is proposing a reasonable timeframe to accommodate this
variation. Parties may need more time to meaningfully review hundreds
of pages of evidence and dozens of witness statements than they would
need to review a much smaller evidentiary file. Proposed Sec.
106.46(e)(6)(ii) would increase discretion for a postsecondary
institution while still ensuring that the parties would be able to
meaningfully review and respond to the relevant and not otherwise
impermissible evidence prior to the live hearing or other determination
of whether sex-based harassment occurred.
Protections against unauthorized disclosures. Current Sec.
106.45(b)(5)(vi) and (vii) do not expressly require a recipient to take
measures to safeguard the evidence and investigative report that they
share with the parties and their advisors. Nevertheless, the Department
recognized in the preamble to the 2020 amendments that a recipient may
adopt additional practices to protect privacy, such as digital
encryption or sharing evidence in a way that prevents copying or saving
the records. See id. at 30307-08, 30435. The Department also stated in
the preamble that ``[r]ecipients may require parties and advisors to
refrain from disseminating the evidence (for instance, by requiring
parties and advisors to sign a non-disclosure agreement that permits
review and use of the evidence only for purposes of the Title IX
grievance process).'' Id. at 30304. Following the implementation of the
2020 amendments, OCR received feedback urging the Department to specify
that recipients can and should impose reasonable limitations on the
sharing of evidence by the parties to protect privacy and prevent the
spread of sensitive information that could compromise the fairness of
the proceedings or harm a party or witness.
In light of the important privacy considerations related to
allegations and evidence in sex-based harassment grievance procedures,
the Department proposes, at Sec. 106.46(e)(6)(iii), to require a
postsecondary institution to take reasonable steps to prevent and
address any unauthorized disclosures by the parties and their advisors
of information and evidence obtained through the sex-based harassment
grievance procedures. As noted above, unauthorized disclosure of
sensitive information could threaten the fairness of the process by
deterring parties or witnesses from participating, affecting the
reliability of witness testimony, leading to retaliatory harassment,
and other consequences. The Department is not proposing specific steps
that a postsecondary institution must take, as what is reasonable to
prevent unauthorized disclosure may vary depending on the
circumstances. In some circumstances, it may be sufficient to inform
the parties of the institution's expectations for how the parties
should safeguard the evidence and the consequences for unauthorized
disclosures. A postsecondary institution may also use software that
restricts further distribution of any reports or records. A
postsecondary institution would have the discretion to define for the
parties what types of further disclosures are permissible; however,
they would not be able to prohibit disclosures to confidential
resources, such as a party's doctor or mental health counselor.
Section 106.46(f) Evaluating Allegations and Assessing Credibility and
106.46(g) Live Hearings
Current regulations: Section 106.45(b)(6)(i) requires a
postsecondary institution to provide for a live hearing as part of its
grievance process for formal complaints of sexual harassment. Live
hearings may be conducted with all parties physically present in the
same geographic location or, at the request of either party, the
recipient must provide for the live hearing to occur with the parties
located in separate rooms with technology enabling the decisionmaker
and parties to simultaneously to see and hear the party or witness
answering questions. The recipient must create an audio or audiovisual
recording, or transcript, of any live hearing and make it available to
the parties for inspection and review.
At the live hearing, the decisionmaker is required to permit each
party's advisor to ask the other party and any witnesses all relevant
questions and follow-up questions, including those challenging
credibility. Cross-examination at the live hearing must be conducted
directly, orally, and in real time by the party's advisor of choice and
never by a party personally. At the request of either party, the
recipient must provide for the live hearing to occur with the parties
located in separate rooms with technology enabling the decisionmaker
and parties to simultaneously see and hear the party or the witness
answering questions.
Only relevant cross-examination and other questions may be asked of
a party or witness. Before a complainant, respondent, or witness
answers a cross-examination or other question, the decisionmaker must
first determine whether the question is relevant and explain any
decision to exclude a question as not relevant. If a party does not
have an advisor present at the live hearing, the recipient must provide
without fee or charge to that party, an advisor of the recipient's
choice, who may be, but is not required to be, an attorney, to conduct
cross-examination on behalf of that party. Questions and
[[Page 41502]]
evidence about the complainant's sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the
complainant's prior sexual behavior are offered to prove that someone
other than the respondent committed the conduct alleged by the
complainant, or if the questions and evidence concern specific
incidents of the complainant's prior sexual behavior with respect to
the respondent and are offered to prove consent.
If a party or witness does not submit to cross-examination at the
live hearing, the decisionmaker must not rely on any statement of that
party or witness in reaching a determination regarding responsibility;
provided, however, that the decisionmaker cannot draw an inference
about the determination regarding responsibility based solely on a
party's or witness's absence from the live hearing or refusal to answer
cross-examination or other questions.
Current Sec. 106.45(b)(6)(ii) permits, but does not require,
elementary and secondary school recipients, and other recipients that
are not postsecondary institutions, to provide for a hearing as part of
their Title IX grievance process for formal complaints of sexual
harassment.
With or without a hearing, after the recipient has sent the
investigative report to the parties and before reaching a determination
regarding responsibility, the decisionmaker must afford each party the
opportunity to submit written, relevant questions that a party wants
asked of any party or witness, provide each party with the answers, and
allow for additional, limited follow-up questions from each party.
With or without a hearing, questions and evidence about the
complainant's sexual predisposition or prior sexual behavior are not
relevant, unless such questions and evidence about the complainant's
prior sexual behavior are offered to prove that someone other than the
respondent committed the conduct alleged by the complainant, or if the
questions and evidence concern specific incidents of the complainant's
prior sexual behavior with respect to the respondent and are offered to
prove consent. The decisionmaker must explain to the party proposing
the questions any decision to exclude a question as not relevant.
Proposed regulations: The Department proposes adding Sec.
106.46(f) to address the requirements for evaluating allegations and
assessing credibility and moving the provision regarding procedures for
live hearings to proposed Sec. 106.46(g). Proposed Sec. 106.46(f)(1)
would require a postsecondary institution to provide a process as
specified in this subpart that enables the decisionmaker to adequately
assess the credibility of the parties and witnesses to the extent
credibility is both in dispute and relevant to evaluating one or more
allegations of sex-based harassment. This assessment of credibility
would include either: (i) allowing the decisionmaker to ask the parties
and witnesses relevant and not otherwise impermissible questions and
follow-up questions, including those challenging credibility, during
individual meetings with the parties or at a live hearing before
determining whether sex-based harassment occurred and allowing each
party to propose to the decisionmaker or investigator relevant and not
otherwise impermissible questions and follow-up questions, including
questions challenging credibility that the party wants asked of any
party or witness and have those questions asked during individual
meetings with the parties or at a live hearing subject to the
requirements in proposed Sec. 106.46(f)(3); or (ii) when a
postsecondary institution chooses to conduct a live hearing, allowing
each party's advisor to ask any party and any witnesses all relevant
and not otherwise impermissible questions under proposed Sec. Sec.
106.2 and 106.45(b)(7) and follow-up questions, including those
challenging credibility, subject to the requirements in proposed Sec.
106.46(f)(3). Proposed Sec. 106.46(f)(1)(ii) would retain the language
from current Sec. 106.45(b)(6)(i) that questioning at a live hearing
must never be conducted by a party personally. In addition, under
proposed Sec. 106.46(f)(1)(ii), if a postsecondary institution permits
advisor-conducted questioning and a party does not have an advisor who
can ask questions on their behalf, the postsecondary institution must
provide the party with an advisor of the postsecondary institution's
choice, without charge to the party, for the purpose of advisor-
conducting questioning, which is the same as the requirement in current
Sec. 106.45(b)(6)(i). The advisor may be, but is not required to be,
an attorney.
Proposed Sec. 106.46(f)(2) would state that compliance with
proposed Sec. 106.46(f)(1)(i) or (ii) satisfies the requirements of
Sec. 106.45(g) to provide a process that enables the decisionmaker to
adequately assess the credibility of the parties and witnesses to the
extent credibility is both in dispute and relevant to evaluating one or
more allegations of sex discrimination.
Proposed Sec. 106.46(f)(3) would require the decisionmaker to
determine whether a proposed question is relevant and not otherwise
impermissible under proposed Sec. Sec. 106.2 and 106.45(b)(7) prior to
the question being posed and explain any decision to exclude a question
as not relevant, which is the same as the requirement in current Sec.
106.45(b)(6)(i) and (ii). If a decisionmaker determines that a party's
question is relevant and not otherwise impermissible, then it must be
asked, with the exception that a postsecondary institution must not
permit questions that are unclear, such that they are vague or
ambiguous, or harassing of the party being questioned. A postsecondary
institution would also be permitted to impose other rules regarding
decorum, provided they apply equally to the parties.
Although proposed Sec. 106.46(f)(1) and (3) do not include the
specific language from current Sec. 106.45(b)(6)(i) and (ii) regarding
questions and evidence about the complainant's sexual predisposition or
prior sexual behavior, the concepts from the current regulations would
be included in proposed Sec. 106.45(b)(7) on evidence that is
impermissible regardless of relevance and would be cross-referenced in
proposed Sec. 106.46(f)(1) and (3).
The Department proposes revising the language in current Sec.
106.45(b)(6)(i) that prohibits the decisionmaker from relying on any
statement of a party or witness who does not submit to cross-
examination at the live hearing in reaching a determination regarding
responsibility. Instead of prohibiting the decisionmaker from
considering all prior statements in these cases, proposed Sec.
106.46(f)(4) would provide that if a party does not respond to
questions related to their credibility, the decisionmaker must not rely
on any statement of that party that supports that party's position. The
Department also proposes maintaining, with minor revisions, the general
principle from current Sec. 106.45(b)(6)(i) regarding drawing an
inference based solely on a hearing participant's decision not to
respond to questions. Proposed Sec. 106.46(f)(4) would prohibit the
decisionmaker from drawing an inference about whether sex-based
harassment occurred based solely on a party's or witness's refusal to
respond to questions related to credibility, including a refusal to
answer such questions during a live hearing.
Proposed Sec. 106.46(g) would eliminate the requirement in current
Sec. 106.45(b)(6)(i) that a postsecondary institution must provide for
a live hearing with cross-examination in its grievance procedures for
complaints of sex-based harassment. Instead, proposed Sec. 106.46(g)
would permit, but not
[[Page 41503]]
require, a postsecondary institution to hold live hearings. If a
postsecondary institution chooses to conduct a live hearing, it would
be permitted to conduct the live hearing with the parties physically
present in the same geographic location but at the postsecondary
institution's discretion or upon the request of either party, it would
conduct the live hearing with the parties physically present in
separate locations with technology enabling the decisionmaker and
parties to simultaneously see and hear the party or the witness while
that person is speaking or communicating in another format, which is
the same as the requirement in current Sec. 106.45(b)(6)(i). The
Department also proposes maintaining the requirement in current Sec.
106.45(b)(6)(i) that a postsecondary institution create an audio or
audiovisual recording, or transcript, of any live hearing and make it
available to the parties for inspection and review.
For information regarding proposed requirements related to
evaluating allegations and assessing credibility for complaints of sex
discrimination other than sex-based harassment complaints involving a
student complainant or student respondent at a postsecondary
institution, see the discussion of proposed Sec. 106.45(g).
Reasons: Live hearings, advisor-conducted questioning, process to
assess credibility and evaluate allegations. The Department proposes
eliminating the requirement that all postsecondary institutions must
hold a live hearing with advisor-conducted cross-examination. Under the
proposed regulations, a postsecondary institution would be permitted,
but not required, to hold a live hearing and to use advisor-conducted
questioning when credibility is at issue and relevant to evaluating one
or more allegations of sex-based harassment. The Department recognizes
the importance of a postsecondary institution having procedures in
place to assess credibility when necessary and to provide a meaningful
opportunity for the parties to be heard, regardless of whether it
chooses to hold a live hearing. The proposed regulations would require
a postsecondary institution to provide a process that enables the
decisionmaker, prior to determining whether sex-based harassment
occurred, to adequately assess the credibility of the parties and
witnesses to the extent credibility is in dispute and relevant to
evaluating one or more allegations of sex-based harassment. This would
include allowing the decisionmaker to ask the parties and witnesses
relevant questions and follow-up questions, including questions
challenging credibility, at a live hearing or during individual
meetings with the parties. It would also include allowing each party to
propose to the postsecondary institution's decisionmaker or
investigator relevant questions and follow-up questions, including
questions challenging credibility, that they want asked of any party or
witness and have those questions asked during individual meetings with
the parties or at a live hearing subject to certain requirements. In
addition, when a postsecondary institution chooses to conduct a live
hearing, it would be permitted to use advisor-conducted cross-
examination to satisfy the requirement to have a process to assess
credibility. The Department provides an overview of the relevant
preamble discussions from the 2018 NPRM and 2020 amendments for
requiring live hearings and cross-examination in the grievance
procedures of postsecondary institution recipients and provides the
reasons for changing these requirements.
Explanation in the 2018 NPRM. In the 2018 NPRM, the Department
described cross-examination as `` `the greatest legal engine ever
invented for the discovery of truth,' '' 83 FR 61476 (quoting
California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 John H.
Wigmore, Evidence Sec. 1367, at 29 (3d ed. 1940))), and noted that at
least one Federal circuit court has held that cross-examination is a
constitutional requirement of due process in the Title IX context
involving a public institution, id. (citing Doe v. Baum, 903 F.3d 575,
581 (6th Cir. 2018)). The Department added that after careful
consideration regarding how to best to incorporate cross-examination
for proceedings at both the postsecondary level and the elementary and
secondary school level, it had determined that issues related to age
and developmental ability may outweigh the benefits of cross-
examination at a live hearing in the elementary and secondary school
context. See id. The Department determined that because these same
issues do not exist at postsecondary institutions since most parties
and witnesses are adults, grievance procedures at postsecondary
institutions must include live cross-examination at a hearing. Id. The
Department explained that requiring the party advisors to conduct the
cross-examination provides the benefits of cross-examination while
avoiding any unnecessary trauma that could arise from personal
confrontation between the complainant and the respondent. See id.
(citing Baum, 903 F.3d at 583).
Discussion of balancing the rights of the parties in the preamble
to the 2020 amendments. In response to stakeholders' support for the
proposal to require a postsecondary institution to hold live hearings
with advisor-conducted cross-examination, the Department recognized
that several appellate courts had recently considered the value of
cross-examination in student misconduct proceedings in postsecondary
institutions and concluded that a meaningful opportunity to be heard
includes the ability to challenge the testimony of parties and
witnesses. See 85 FR 30313. The Department also agreed with
stakeholders that cross-examination serves the interests of parties and
recipients because, in their view, it allows the decisionmaker to
observe parties and witnesses answer questions, including those
challenging credibility, which serves the truth-seeking function. See
id.
The Department further stated that cross-examination is a necessary
part of a fair, truth-seeking grievance process in postsecondary
institutions, and that the 2020 amendments include appropriate
safeguards that minimize the traumatic effect on complainants. See id.
at 30315. In response to concerns raised by stakeholders regarding the
traumatic effect of live hearings and cross-examination, the Department
explained that any re-traumatization of complainants can be mitigated
because cross-examination is conducted only by party advisors and the
2020 amendments contain other protections regarding the types of
questions and evidence permitted and the ability to request that the
live hearing occur with the parties in separate rooms. See id. at
30313-14.
Discussion of cross-examination and reporting in the preamble to
the 2020 amendments. In response to concerns that requiring live
hearings with cross-examination would have a chilling effect on
reporting, the Department acknowledged in the preamble to the 2020
amendments that complainants may be dissuaded from pursuing a formal
complaint out of fear of undergoing aggressive questioning, but noted
that recipients may educate their students and employees regarding what
cross-examination will look like and may also develop rules and
practices that ensure that questioning during cross-examination is
relevant, respectful, and non-abusive. See id. at 30316. In addition,
in response to concerns that requiring cross-examination would
discourage many students, including complainants, respondents, and
witnesses, from
[[Page 41504]]
participating in a Title IX grievance process, see id. at 30331, the
Department stated that live hearings and cross-examination at
postsecondary institutions, constitutes a serious, formal process'' and
noted that the 2020 amendments ensured that a recipient's students and
employees are ``aware of that process'' and ``each party has the right
to assistance from an attorney or non-attorney advisor throughout the
process,'' id. at 30332. The Department explained sexual harassment is
a serious matter that warrants a predictable, fair grievance process
with strong procedural protections for both parties'' to ensure
reliable determinations regarding responsibility. Id.
Case law discussion regarding cross-examination and due process in
the preamble to the 2020 amendments. As noted in the discussion of the
Framework for Grievance Procedures for Complaints of Sex Discrimination
(Section II.F), the Department acknowledged in the preamble to the 2020
amendments that ``the Supreme Court has not ruled on what procedures
satisfy due process of law under the U.S. Constitution in the specific
context of a Title IX sexual harassment grievance process held by a
postsecondary institution, and that Federal appellate courts that have
considered this particular issue in recent years have taken different
approaches.'' Id. at 30327. The Department explained that the
procedures required under current Sec. 106.45 ``are consistent with
constitutional requirements'' and best effectuate both parties' rights
to meaningfully be heard regarding the allegations in a formal
complaint of sexual harassment. Id. The Department recognized that what
constitutes a meaningful opportunity to be heard may depend on specific
circumstances and explained that a live hearing with cross-examination
is required in the postsecondary context but not in elementary schools
and secondary schools. See id.
The Department stated that ``the Sixth Circuit has held that cross-
examination, at least conducted through a party's advisor, is necessary
to satisfy due process in sexual misconduct cases that turn on party
credibility.'' Id. at 30327-28 (citing Baum, 903 F.3d at 581). The
Department agreed with the reasoning of the U.S. Court of Appeals for
the Sixth Circuit in Baum that allowing the respondent's advisor to
conduct cross-examination on behalf of the respondent provides the
benefits of cross-examination without the ``emotional trauma of
directly confronting the complainant's alleged attacker.'' Id. at
30328. Based on this view, the Department explained that current Sec.
106.45(b)(6)(i) is consistent with the Sixth Circuit's reasoning
because it requires that both parties have the opportunity for cross-
examination, allows either party to request that cross-examination (and
the entire live hearing) be conducted with the parties in separate
rooms, permits only party advisors to conduct cross-examination,
forbids personal confrontation between parties, and requires the
decisionmaker to determine the relevance of a cross-examination
question before a party or witness answers. See id.
The Department noted that the Baum opinion involved certain
circumstances that justified cross-examination: it involved a public
university that was required to comply with constitutional due process
requirements; a sexual harassment case that turned on credibility and
involved serious consequences; and a postsecondary institution that
already provided hearings for other types of misconduct and could not
argue that it faced more than a minimal burden to provide a live
hearing for sexual harassment cases. See id. The Department asserted,
however, that even though some recipients ``are private institutions
that do not owe constitutional protections,'' it is equally important
to consistently apply a grievance process to accurately resolve
allegations of sexual harassment under Title IX in private and public
institutions. Id. The Department agreed with stakeholders that not
every formal complaint of sexual harassment ``turns on party or witness
credibility'' but noted that ``most of these complaints do involve
plausible, competing narratives of the alleged incident, making party
participation in the process vital for a thorough evaluation of the
available, relevant evidence.'' Id.
The Department also acknowledged in the preamble to the 2020
amendments that following the public comment period on the 2018 NPRM,
the U.S. Court of Appeals for the First Circuit reached a different
holding regarding cross-examination than the Sixth Circuit in a Title
IX sexual misconduct case. Id. at 30329 (citing Haidak v. Univ. of
Mass.-Amherst, 933 F.3d 56, 68-70 (1st Cir. 2019)). The Department
explained that the First Circuit held that a postsecondary institution
could satisfy due process ``by using inquisitorial rather than
adversarial method of cross-examination, by having a neutral school
official pose probing questions of parties and witnesses in real-time,
designed to ferret out the truth about the allegations at issue.'' Id.
(citing Haidak, 933 F.3d at 69-70). The Department further acknowledged
that after the public comment period on the 2018 NPRM closed, the First
Circuit also decided a case under Massachusetts State law involving
discipline of a student by a private college for sexual misconduct,
holding that the college ``owed no constitutional due process to the
student and that State law did not require any form of real-time cross-
examination as part of [the college's] contractual [obligation of]
basic fairness.'' Id. (citing Doe v. Trustees of Bos. Coll., 942 F.3d
527 (1st Cir. 2019)). The Department declined to make any changes to
current Sec. 106.45(b)(6)(i) in response to these decisions.
Discussion of alternatives to advisor-conducted cross-examination
in the preamble to the 2020 amendments. In response to suggestions from
stakeholders that the Department allow postsecondary institutions to
use cross-examination conducted by a neutral college administrator, or
questions submitted by the parties as permitted for elementary and
secondary school recipients under the 2020 amendments, the Department
stated that those procedures cannot ensure a fair process and reliable
outcomes in postsecondary institutions. See id. at 30330. The
Department explained that regardless of whether those practices are
consistent with the requirements of constitutional due process it
believed that current Sec. 106.45 ``appropriately and reasonably
balances the truth-seeking function of live, real-time, adversarial
cross-examination in the postsecondary institution context with
protections against personal confrontation between the parties.'' Id.
The Department further stated that ``regardless of whether the
provisions in [current] Sec. 106.45(b)(6)(i) are required under
constitutional due process of law, the Department believes that these
procedures meet or exceed the due process required under Mathews v.
Eldridge, 424 U.S. 319, 321 (1976),'' and that the Department has the
regulatory authority under Title IX to adopt provisions ``the
Department has determined best effectuate the purpose of Title IX.''
Id. (footnotes omitted). Finally, the Department stated that
adversarial questioning must be conducted by persons who need not be
impartial to the parties and the recipient's neutral, impartial
decisionmaker benefits from observing the questions and answers of each
party and witness posed by a party's advisor advocating for that
party's interests. See id. at 30330-31.
Feedback received after implementation of the 2020 amendments.
According to feedback received from stakeholders in
[[Page 41505]]
connection with the June 2021 Title IX Public Hearing and listening
sessions, although recipients had a limited amount of time to assess
the impact of the 2020 amendments' live hearing and cross-examination
requirement, some postsecondary institutions reported that they
experienced a decrease in the number of complaints filed as well as an
increase in the number of individuals who report sexual harassment but
decline to move forward with the grievance process once they are
provided with information about the grievance process. These
postsecondary institutions expressed the belief that based on their
experiences, the reduction in complaints filed and in complainants
willing to move forward with the grievance process is likely due to the
live hearing and advisor-conducted cross-examination requirements in
the 2020 amendments. Other stakeholders questioned the utility of live
hearings, asserting that many of the questions that arise during the
hearings have already been asked and answered during the investigation.
In addition, a number of postsecondary institutions pointed to the live
hearing and cross-examination requirements as examples of provisions in
the current regulations that are overly burdensome and prescriptive for
recipients and have the effect of interfering with recipients' ability
to meet their Title IX obligations. In the 2021 Title IX Public Hearing
and in listening sessions, OCR also heard from stakeholders who
supported an alternative approach to live hearings with cross-
examination; these stakeholders favored giving the flexibility the
current regulations provide for non-postsecondary institutions to all
recipients by permitting the parties to submit questions to the
decisionmaker to ask, providing each party with the answers, and
allowing for additional, limited follow-up questions from each party.
OCR also received comments from several non-recipient stakeholders
expressing support for the current requirements regarding live hearings
and cross-examination and noting that they provide a means for a
respondent to challenge credibility or inconsistencies.
After considering the issue and reweighing the facts and
circumstances, including views expressed by a wide array of
stakeholders, particularly those with experience in implementing or
participating in a recipient's process that included the live hearing
and cross-examination requirements, and reviewing the applicable case
law and academic writing on the topic of cross-examination and
alternatives to cross-examination, the Department proposes eliminating
the requirement for postsecondary institutions to hold a live hearing
with advisor-conducted cross examination while still permitting them to
hold such a hearing if the postsecondary institution deems it
appropriate in a particular sex-based harassment case. The Department's
tentative view is that the requirement for all postsecondary
institutions to hold a live hearing with advisor-conducted cross-
examination exceeds what is required in order to provide equitable
procedures to the parties and is not necessary to provide a respondent
with a meaningful opportunity to be heard. The Department's view is
also that this requirement in the current regulations does not
adequately account for the diversity of postsecondary institutions
subject to Title IX. This proposed approach would provide a recipient
with reasonable options for how to structure its grievance procedures
to ensure that they are equitable for the parties while accommodating
each recipient's administrative structure, education community, the
applicable Federal and State case law, and State or local legal
requirements by still permitting any postsecondary institution that so
chooses to hold a live hearing with advisor-conducted cross-
examination.
The Department's tentative view is that neither Title IX nor due
process and fundamental fairness require postsecondary institutions to
hold a live hearing with advisor-conducted cross-examination in all
cases. The Department currently believes, however, that a postsecondary
institution should be required to provide a live-questioning process
that enables the decisionmaker to adequately assess the credibility of
the parties and witnesses to the extent credibility is in dispute and
is relevant to evaluating one or more allegations of sex-based
harassment in its grievance procedures for sex-based harassment
involving a student complainant or student respondent. Further, the
Department currently believes that the procedures described in proposed
Sec. 106.46(f) and (g) would appropriately protect the right of all
parties to have a meaningful opportunity to respond to allegations and
the postsecondary institution's interest in grievance procedures that
enable the decisionmaker to seek the truth and minimize chilling
effects on the reporting of sex-based harassment and on participation
in the recipient's grievance procedures by a complainant or respondent.
The Department's tentative position is that the procedures
described in proposed Sec. 106.46(f) and (g) appropriately recognize
that although all postsecondary institutions, regardless of their size,
type, administrative structure, and location, must comply with the
requirements of Title IX, promulgating regulations that take into
account the diversity of postsecondary institutions subject to Title IX
would best ensure effective implementation of Title IX. In view of
this, proposed Sec. 106.46(g) would permit, but not require, all
postsecondary institutions to hold a live hearing and proposed Sec.
106.46(f)(1) would permit, but not require, postsecondary institutions
to use advisor-conducted questioning at a live hearing when the
decisionmaker determines that credibility is in dispute and relevant to
evaluating one or more allegations of sex-based harassment. Under this
approach, a postsecondary institution would still be able to hold live
hearings if it chose to do so and a postsecondary institution,
including a public postsecondary institution located within the
jurisdiction of the Sixth Circuit where, as described above, advisor-
conducted cross-examination is currently required, may use advisor-
conducted questioning at a live hearing under the circumstances
articulated by the court in Baum. A postsecondary institution that
opted to hold live hearings would, at the request of either party, be
required to conduct the live hearings with the parties in separate
locations with technology enabling the decisionmaker and parties to
simultaneously see and hear the party or the witness while that person
is speaking or communicating in another format.
Review of relevant case law on cross-examination. As the Department
stated in the preamble to the 2020 amendments and as explained in the
discussion of the Framework for Grievance Procedures for Complaints of
Sex Discrimination (Section II.F), the Supreme Court has not ruled on
what elements are necessary for a public postsecondary institution's
Title IX sexual harassment grievance procedures to satisfy due process
of law under the U.S. Constitution, and Federal appellate courts have
taken different approaches on this issue in recent years. See 85 FR
30327. It is important to recognize that academic disciplinary
proceedings are not co-extensive with civil or criminal trials. See,
e.g., Nash, 812 F.2d at 664 (``Due process requires that appellants
have the right to respond, but their rights in the academic
disciplinary
[[Page 41506]]
process are not co-extensive with the rights of litigants in a civil
trial or with those of defendants in a criminal trial.''). The Supreme
Court and other Federal courts have held that there is no general right
to cross-examine witnesses in disciplinary proceedings against students
at the postsecondary school level, even in public institutions. See,
e.g., Horowitz, 435 U.S. at 86 n.3 (declining to recognize a right to a
hearing with the opportunity for cross-examination during student
disciplinary proceedings considering factors in Matthews); Butler v.
Rector & Bd. of Visitors of Coll. of William & Mary, 121 F. App'x 515,
520 (4th Cir. 2005) (finding ``no basis in law'' to import the right to
cross-examine witnesses into the academic context); Gorman, 837 F.2d at
16 (holding that the right to unlimited cross-examination is not ``an
essential requirement of due process in school disciplinary cases'');
Nash, 812 F.2d at 664 (finding that the inability to question adverse
witnesses in the usual, adversarial manner did not result in a denial
of appellants' constitutional rights to due process).
Even absent a general right to cross-examination, some courts have
held, in both public and private postsecondary settings, that some
method of live cross-examination is required by due process and basic
fairness when a disciplinary charge rests on a witness's or
complainant's credibility. See, e.g., Doe v. Univ. of Scis., 961 F.3d
203, 215 (3d Cir. 2020) (holding that in a sexual assault case that
hinges on credibility, basic fairness requires the chance to test
witnesses' credibility through some method of cross-examination, but
declining ``to prescribe the exact method by which a college or
university must implement these procedures''); Doe v. Univ. of
Cincinnati, 872 F.3d 393, 401 (6th Cir. 2017) (holding that accused
students must have the right to cross-examine adverse witnesses in the
most serious of cases, such as those depending on witness credibility);
Winnick v. Manning, 460 F.2d 545, 549-50 (2d Cir. 1972) (holding that
although unlimited cross-examination is not an essential element of due
process in college discipline cases, it may be required when the
resolution of the case turns on credibility assessments); Doe v. Allee,
30 Cal. App. 5th 1036, 1039 (Ct. App. 2019) (holding that in a case in
which a student faces serious discipline for alleged sexual misconduct,
and the credibility of witnesses is central to the adjudication of the
charge, fundamental fairness requires, at a minimum, that the
university provide a way for the accused to cross-examine those
witnesses, directly or indirectly, at a hearing where the witnesses
appear in person or by other means). As explained in the discussion of
the case law regarding cross-examination and due process and in the
preamble to the 2020 amendments, the Sixth Circuit held in Baum that
when a student is accused of misconduct, the university must hold some
sort of hearing before imposing a sanction as serious as expulsion or
suspension and if credibility is in dispute and material to the
outcome, the hearing must include an opportunity for cross-examination.
903 F.3d at 581-84. The Department notes, however, that the Sixth
Circuit did not consider whether examination by a neutral party (at
either a live hearing or in separate meetings with the parties) would
be sufficient to satisfy its view of constitutional due process. See
Haidak, 933 F.3d at 69-70.
Following the Sixth Circuit's decision in Baum, courts outside of
the Sixth Circuit have generally held that even if there is a right to
cross-examination in certain disciplinary cases, that right can be
satisfied through indirect questioning--such as allowing parties to
propose questions to be asked by a neutral actor--in both the public
and private university setting. See, e.g., Univ. of Ark.-Fayetteville,
974 F.3d at 867-68 (rejecting due process challenge when the accused
student was permitted to submit questions to the hearing panel and the
hearing panel had discretion about whether to pose the questions to
witnesses); Haidak, 933 F.3d at 69 (holding that in the university
disciplinary setting, due process may require some opportunity to
confront the complaining witness, but that this confrontation need not
be done by the accused student or that student's representative); Lee
v. Univ. of N.M., 500 F. Supp. 3d 1181, 1241-42 (D.N.M. 2020) (finding
that the Due Process Clause does not require postsecondary institutions
to permit respondents to personally confront complainants even when
credibility is at issue); Gendia v. Drexel Univ., No. 20-1104, 2020 WL
5258315, at *5 (E.D. Pa. Sept. 2, 2020) (finding that the university
satisfied the requirements for fundamental fairness when it allowed the
parties to submit cross-examination questions to the adjudicator);
Haas, 427 F. Supp. 3d at 350-51 (declining to find a due process
violation when the plaintiff was not allowed to personally cross-
examine his accuser and noting that the Sixth Circuit's holding in Baum
was not binding on the court). In addition, in Doe v. Trustees of
Boston College, 942 F.3d 527, 535 (1st Cir. 2019), the U.S. Court of
Appeals for the First Circuit rejected a fundamental fairness challenge
to a one-year suspension for sexual assault imposed upon a student
without the use of any form of live questioning. The First Circuit held
that the private college's basic fairness obligation did not require
the school to provide an adjudicatory hearing process or even a process
at which both parties are present and have the opportunity to suggest
questions to be asked of the other in real time. Id. at 534.
The Department notes that a few district courts outside of the
Sixth Circuit recently have cited Baum to support their holdings, but
it is unclear from these decisions whether these courts would have held
that such a right could be satisfied by indirect cross-examination at a
live hearing or in separate meetings with the parties. See, e.g., Doe
v. Univ. of Conn., No. 3:20cv92, 2020 WL 406356, at *5 (D. Conn. Jan.
23, 2020) (noting that courts have reached different conclusions as to
whether the accused has a right to cross-examine witnesses in the
traditional manner, referencing Baum, and holding that in this
credibility case involving a severe sanction, the plaintiff was likely
to succeed on his due process claim because he did not have the
opportunity to question or confront two of the witnesses on whose
statements the hearing officers relied); Norris v. Univ. of Colo.,
Boulder, 362 F. Supp. 3d 1001, 1020 (D. Colo. 2019) (referring to the
holding in Baum, noting that the Tenth Circuit has not so opined, but
finding that the absence of a full hearing with cross-examination
supports a claim for a violation of plaintiff's due process rights);
Univ. of Miss., 361 F. Supp. at 611-13 (in refusing to grant the
university's motion to dismiss and thus declining to reject the Sixth
Circuit's approach to cross-examination in Baum, the court found that
plaintiff pleaded enough facts to permit discovery as to whether there
was a procedural due process violation because, inter alia, the
plaintiff was not permitted to cross-examine his accuser or other
witnesses either directly or through written questions because none of
them appeared at the hearing). District courts in the Sixth Circuit
have also extended the holding in Baum from student disciplinary
proceedings to the employment context. See, e.g., Smock v. Bd. of
Regents of Univ. of Mich., 353 F. Supp. 3d 651, 657 (E.D. Mich. 2018)
(applying Baum's cross-examination requirement to a university
professor's pre-deprivation hearing for alleged misconduct); Frost v.
Univ. of Louisville,
[[Page 41507]]
392 F. Supp. 3d 793, 804-06 (W.D. Ky. 2019) (same).
After reevaluating this issue, including cases decided both before
and after the promulgation of the 2020 amendments, it is the
Department's tentative position that the relevant case law does not
require a postsecondary institution to provide for a live hearing with
advisor-conducted cross-examination in all cases, at least as long as
it provides another live method of determining credibility. As noted,
the proposed regulations would permit a postsecondary institution to
employ live, advisor-conducted cross-examination when applicable case
law or other sources of law require that approach or the postsecondary
institution uses its discretion to choose that approach. The Department
further notes that each permissible option for evaluating the
allegations and assessing credibility under the proposed regulations
would require that the questions posed be answered live, whether in
individual meetings with the decisionmaker or investigator or at a live
hearing.
Scholarship on cross-examination. The preamble to the 2018 NPRM and
2020 amendments, as well as the Baum court, referred to case law
describing cross-examination as the greatest legal engine ever invented
for the discovery of truth. The Department recognizes, however, that
while that statement is oft-repeated, notable research from the last
several decades has called into question whether adversarial cross-
examination is the most effective tool for truth-seeking in the context
of sex-based harassment complaints involving students at postsecondary
institutions.
In particular, there is growing evidence to suggest that ``adults
who have been sexually victimized may be a particularly vulnerable
group of witnesses overall,'' especially during cross-examination.
Rachel Zajac & Paula Cannan, Cross-Examination of Sexual Assault
Complainants: A Developmental Comparison, 16 Psychiatry, Psych., & L.
S36, S38 (2009) (citations omitted). For example, sexual assault has
been associated with low self-esteem and low self-confidence, which
have been shown to increase a person's vulnerability to suggestion. Id.
Adults who have been sexually victimized are also least likely to
exhibit confidence, powerful speech, and perseverance in maintaining
control of a verbal exchange, which are the attributes most favorable
to adult witnesses. Id. (citations omitted).
In addition, studies have found that information-gathering
approaches such as questions asked in individual meetings instead of
during a live hearing (sometimes described as inquisitorial procedures)
are more likely to produce the truth than adversarial methods like
cross-examination. These studies ``suggested that inquisitorial
procedures may result in the presentation of more accurate and less
biased information.'' Mark R. Fodacaro et al., Reconceptualizing Due
Process in Juvenile Justice: Contributions from Law and Social Science,
57 Hastings L.J. 955, 982, 982 n.165 (2006) (citing E. Allan Lind & Tom
R. Tyler, The Social Psychology of Procedural Justice 25 (1988)); see
also Christopher Slobogin, Lessons from Inquisitorialism, 87 S. Cal. L.
Rev. 699, 711 (2014). Because non-adversarial information gathering
approaches tend to reduce opportunities for bias, researchers have
found that such methods are ``most likely to produce truth.'' John
Thibaut & Laurens Walker, A Theory of Procedure, 66 Calif. L. Rev. 541,
547 (1978).
The Department recognizes that some courts, advocates, and legal
scholars believe that advisor-conducted cross-examination is the most
effective way, and in the view of some, the only way, to ensure the
accuracy of witness testimony, especially in cases that hinge on
credibility. After reevaluating the issue, however, including the case
law and research discussed above, the Department's tentative position
is that methods that require parties and witnesses to answer questions
in a live format, other than advisor-conducted cross-examination during
a live hearing, can provide an effective way to seek the truth in sex-
based harassment cases involving postsecondary students and ensure that
the parties have a meaningful opportunity to be heard. For this reason,
to the extent credibility is in dispute and relevant to evaluating one
or more allegations of sex-based harassment, proposed Sec.
106.46(f)(1) would permit a postsecondary institution to have the
decisionmaker ask the parties and witnesses relevant questions and
follow-up questions, including questions challenging credibility.
Proposed Sec. 106.46(f)(1) would permit the decisionmaker to do this
during individual meetings with the parties or at a live hearing.
Proposed Sec. 106.46(f)(1) would also allow each party to propose to
the decisionmaker or investigator relevant questions and follow-up
questions, including those challenging credibility that they want asked
of any party or witness and have those questions asked, subject to the
requirement in proposed Sec. 106.46(f)(3), during individual meetings
with the parties or at a live hearing, in addition to permitting any
postsecondary institution that so chooses, to use advisor-conducted
cross-examination. The Department's tentative view is that any benefit
that adversarial cross-examination may have over other methods of live
questioning is not sufficient to justify mandating that all
postsecondary institutions permit adversarial cross-examination in
every case, either as a matter of due process or fundamental fairness
or of effectuating Title IX's nondiscrimination mandate, in light of
the considerable costs imposed by adversarial cross-examination,
particularly in the context of allegations of sex-based harassment.
As explained in the discussion of proposed Sec. 106.46(f)(1),
regardless of format, this credibility assessment, if needed to
evaluate one or more allegations of sex-based harassment, would have to
take place prior to the decisionmaker determining whether sex-based
harassment occurred. The decisionmaker must determine whether a
proposed question is relevant prior to the question being posed and
explain any decision to exclude a question as not relevant. If a
decisionmaker determines that a party's question is relevant and not
otherwise impermissible, then the question must be asked; however, a
postsecondary institution must not permit questions that are unclear or
harassing of the party being questioned. A postsecondary institution
would also retain discretion to impose other reasonable rules regarding
decorum, provided they apply equally to the parties. The Department
anticipates that the requirements in proposed Sec. 106.46(f)(1) would
provide an effective means for assessing credibility and seeking the
truth while avoiding some of the deficiencies or drawbacks that may be
associated with requiring advisor-conducted cross-examination in all
sex-based harassment cases and for all types of postsecondary
institutions. The Department notes that proposed Sec. 106.46(e)(6)(i)
would require a postsecondary institution to either provide the parties
with equitable access to the relevant and not otherwise impermissible
evidence or to the same investigative report that accurately summarizes
this evidence. This evidence or investigative report would include a
discussion of the evidence obtained through questioning of the parties
and witnesses by the decisionmaker. In addition, although not required
to do so, nothing in proposed Sec. 106.46(f) would prohibit a
postsecondary institution from compiling a transcript of questioning of
[[Page 41508]]
the parties and witnesses by the decisionmaker and providing a copy of
the transcript to the parties.
Under proposed Sec. 106.46(f)(1), a postsecondary institution
would have discretion to structure its processes for enabling the
decisionmaker to adequately assess the credibility of the parties and
witnesses to the extent credibility is both in dispute and relevant to
evaluating one or more allegations of sex-based harassment as long as
the process complies with the requirements set out in proposed Sec.
106.46(f)(1) and (3). For example, some postsecondary institutions may
decide to have the decisionmaker ask their questions and the parties'
questions of any party and witnesses during individual meetings. Other
postsecondary institutions may decide to hold a live hearing in which a
decisionmaker poses their own questions and follow-up questions to the
parties and also asks questions and follow-up questions of each party
and witnesses that were proposed by the other party. In all instances,
a postsecondary institution would not be permitted to have grievance
procedures in which the questions and answers would be provided in
writing. Although the discussion here refers to witnesses, the
Department recognizes that not all grievance procedures will involve
witnesses in addition to the parties.
Notwithstanding the research discussed above regarding the
potential deficiencies of advisor-conducted cross-examination as a
truth-seeking tool, some postsecondary institutions may view it as the
most effective means to assess credibility in certain cases and may
choose to use it or may be required to use it based on the jurisdiction
in which they are located. To accommodate these postsecondary
institutions, proposed Sec. 106.46(f)(1) would permit a postsecondary
institution to use advisor-conducted questioning at a live hearing to
satisfy the requirement in proposed Sec. 106.46(f)(1) regarding a
process for assessing credibility. During this questioning, the party's
advisor would be permitted to ask any party and any witnesses all
relevant questions and follow-up questions, including those challenging
credibility, subject to the requirements in proposed Sec.
106.46(f)(3), which are discussed above.
When credibility is not in dispute. Courts, including the Sixth
Circuit in Baum, have held that there are situations in which cross-
examination is unwarranted. These include, for example, situations in
which the respondent admits to engaging in the misconduct, in which a
recipient reaches a decision based on evidence other than the
complainant's statements, and in which the respondent waives their
right to a hearing. See, e.g., Doe v. Case W. Rsrv. Univ., 809 F. App'x
276, 281-82 (6th Cir. 2020) (noting that the Sixth Circuit has yet to
decide whether the right to cross-examination exists in Title IX
proceedings conducted by a private university when credibility is at
issue and holding that the plaintiff waived any right to cross-
examination when he stated that he did not want any witnesses and
selected the sole administrator hearing that did not allow for the
presentation of evidence or cross-examination of witnesses); Baum, 903
F.3d at 584 (explaining that if a student admits to engaging in
misconduct cross-examination is unnecessary because there is little to
be gained by adversarial questioning when the accused student has
already confessed); Plummer, 860 F.3d at 775-76 (holding that accused
students had no right to cross-examination when the defendant
university did not rely on testimonial evidence from the alleged
victim); Winnick, 460 F.2d at 549-50 (even assuming the right to
confront witnesses may be essential in some disciplinary hearings, due
process did not require cross-examination in this case, because, inter
alia, credibility was not at issue because the plaintiff admitted to
the crucial fact at issue in the case); Doe v. Univ. of Neb., 451 F.
Supp. 3d 1062, 1123 (D. Neb. 2020) (holding that while some courts have
recently held that a state-college student facing expulsion for alleged
sexual misconduct has the right under the Fourteenth Amendment to
confront and cross-examine their accuser when credibility is material
to the outcome, no such right exists when the accused admits to
engaging in the misconduct); Flor v. Univ. of N.M., 469 F. Supp. 3d
1143, 1153-54 (D.N.M. 2020) (holding that no right to cross-examination
existed in this case because the university did not rely on the
accuser's statements in concluding that the plaintiff violated
university policy and instead relied on communications between the
plaintiff and the accuser and plaintiff did not challenge the
authenticity of those communications). In these situations, a recipient
would not be required to implement its process required under proposed
Sec. 106.46(f)(1) for enabling the decisionmaker to adequately assess
the credibility of the parties and witnesses because credibility is not
in dispute and is not relevant to evaluating the allegations.
Removing the prohibition on statements not subject to cross-
examination. On July 28, 2021, the United States District Court for the
District of Massachusetts issued a decision in Victim Rights Law Center
et al. v. Cardona vacating the language in current Sec.
106.45(b)(6)(i) prohibiting a decisionmaker from relying on any
statement of a party or witness who does not submit to cross-
examination at a live hearing in reaching a determination regarding
responsibility. 552 F. Supp. 3d 104, 134 (D. Mass. 2021), order
clarified, No. 20-11104-WGY, 2021 WL 3516475, at *1 (D. Mass. Aug. 10,
2021), appeals filed, Nos. 21-1773, 21-1777, 21-1782, 21-1783, 21-1784,
21-1853 (1st Cir. 2021). The court found that the vacated language was
arbitrary and capricious, concluding that the Department ``failed to
consider the consequences of Sec. 106.45(b)(6)(i)'s prohibition on
statements not subject to cross-examination in conjunction with other
challenged provisions.'' 552 F. Supp. 3d at 132. The court discussed
that nothing in the 2020 amendments would prevent a respondent from
working with the school to schedule the live hearing at an inconvenient
time for third-party witnesses and the respondent may choose not to
attend the hearing to avoid the possibility of self-incrimination, and
the respondent may speak freely about the investigation to collect
evidence or persuade other witnesses not to attend the hearing as long
as this is not done in a ``tortious or retaliatory manner.'' Id. at
132-33. The court explained that when the prohibition on statements not
subject to cross-examination is applied under such circumstances and a
recipient applies the clear and convincing evidence standard, it is
hard to ``imagine how a complainant reasonably could overcome the
presumption of non-responsibility [in the current regulations] to
attain anything beyond the supportive measures that he or she is
offered when they first file the formal complaint.'' Id. at 133. The
court further explained that it was striking down this prohibition not
because this result is manifestly unreasonable, but because ``nothing
in the administrative record demonstrates that the Department was aware
of this result, considered its possibility, or intended this effect''
and ``the construction of the [2020 amendments] suggests that the
Department failed even implicitly to recognize this result.'' Id. A
party that the court gave leave to intervene has appealed the court's
judgment vacating the language in current Sec. 106.45(b)(6)(i) and
plaintiffs have also appealed the court's judgment. Those appeals are
currently
[[Page 41509]]
pending with the U.S. Court of Appeals for the First Circuit.
The Department proposes revisions to the language in current Sec.
106.45(b)(6)(i) that was vacated by the U.S. District Court of
Massachusetts. The Department recognizes that the language in current
Sec. 106.45(b)(6)(i) placing limitations on the decisionmaker's
ability to consider statements not subject to cross-examination was
vacated by the district court and is thus no longer part of the current
regulations. The Department is concerned, however, that placing no
limitations on the decisionmaker's ability to consider statements made
by a party who does not submit to a credibility assessment could lead
to manipulation by the parties. For example, if there were no
limitations placed on the decisionmaker's ability to consider prior
statements from parties who do not submit to a credibility assessment,
a complainant could write an email to a friend and leave a voicemail
for another friend detailing the events related to the alleged sex-
based harassment. If the complainant refused to submit to a credibility
assessment, the decisionmaker would be permitted to consider the email
and voicemail for their truth, but the respondent would not have an
opportunity to question the complainant, including to assess
credibility. This same result could also occur if a respondent writes
an email to a friend and leaves a voicemail for another friend
detailing the events in question and then refuses to submit to a
credibility assessment. Under proposed Sec. 106.46(f)(4), if a party
does not respond to questions related to their own credibility, the
decisionmaker would be prohibited from relying on any statement of that
party that supports that party's position. The Department's proposed
language is intended to avoid situations like that described above in
which a party could avoid responding to questions related to their own
credibility and the decisionmaker would have to consider prior
statements made by that party that support that party's position. It
would apply when a party refuses to answer questions related to their
own credibility either during the investigation in individual meetings
with the decisionmaker or investigator or during the live hearing, if
the postsecondary institution holds a live hearing. The Department
would propose this change regardless of whether the district court's
vacatur is ultimately upheld on appeal.
The Department also proposes incorporating language similar to
current Sec. 106.45(b)(6)(i) regarding inferences based on a party's
or witness's absence from a live hearing or refusal to answer questions
related to credibility into proposed Sec. 106.46(f)(4). Under proposed
Sec. 106.46(f)(4), the decisionmaker would be prohibited from drawing
an inference about whether sex-based harassment occurred based solely
on a party's or witness's absence from a live hearing or refusal to
respond to questions related to credibility, including a refusal to
answer such questions during a live hearing.
Incorporation of Requirements From the 2020 Amendments
Live hearing logistics. As explained in the summary of proposed
Sec. 106.46(g), the Department proposes incorporating the requirement
from current Sec. 106.45(b)(6)(i) into proposed Sec. 106.46(g) so
that if a postsecondary institution chooses to conduct a live hearing
under proposed Sec. 106.46(g), it may conduct the live hearing with
the parties physically present in the same geographic location, but at
the postsecondary institution's discretion or upon the request of
either party, it would conduct the live hearing with the parties
physically present in separate locations with technology enabling the
decisionmaker and parties to simultaneously see and hear the party or
the witness while that person is speaking or communicating in another
format. Participating from separate locations would include virtually
participating from separate locations or participating while physically
present but in separate rooms on the postsecondary institution's
campus. The Department also proposes incorporating into proposed Sec.
106.46(g) the requirement in current Sec. 106.45(b)(6)(i) that a
postsecondary institution create an audio or audiovisual recording, or
transcript, of any live hearing and make it available to the parties
for inspection and review. Nothing in the proposed regulations would
prohibit a recipient from imposing rules that restrict the parties from
creating their own recording. Proposed Sec. 106.46(g) would not impose
specific requirements regarding how a recipient provides the recording
or transcript to the parties for inspection and review and it is up to
each recipient to determine how to fulfill this requirement and whether
to also provide a copy of the recording or transcript to the parties.
As explained in the discussion of proposed Sec. 106.45(b)(1), a
recipient's grievance procedures must treat complainants promptly and
equitably, which may require certain considerations when the parties,
witnesses, or other hearing participants are persons with disabilities
or persons with limited English proficiency. When conducting a live
hearing, it may be necessary for a recipient to provide auxiliary aids
and services to persons with disabilities who are participating in the
hearing. In addition, it may be necessary for a recipient to provide
language assistance services, such as translations or interpretation,
for persons with limited English proficiency who are participating in
the hearing.
Ability of the parties to propose questions and the recipient's
obligation to make relevance determinations. Current Sec.
106.45(b)(6)(ii) requires recipients that are elementary and secondary
schools, and other recipients that are not postsecondary institutions
to afford each party the opportunity to submit written, relevant
questions that a party wants asked of any party or witness, provide
each party with the answers, and allow for additional, limited follow-
up questions from each party. As explained in the summary of proposed
Sec. 106.45(f)(3), proposed Sec. 106.46(f)(3) would impose a similar
obligation on postsecondary institutions by requiring them to allow
each party to propose to the decisionmaker or investigator relevant and
not otherwise impermissible questions that they want asked of any party
or witness and have those questions subject to the requirements in
proposed Sec. 106.46(f)(3). Proposed Sec. 106.46(f)(3) would include
the requirement from current Sec. 106.45(b)(6)(i) and (ii) that the
decisionmaker determine whether a proposed question is relevant prior
to the question being posed and explain any decision to exclude a
question as not relevant.
Advisor-conducted questioning. When a postsecondary institution
chooses to use advisor-conducted questioning at a live hearing,
proposed Sec. 106.46(f)(1)(ii) would incorporate the language from
current Sec. 106.45(b)(6)(i) requiring: (1) the recipient to permit
each party's advisor to ask the other party and any witnesses all
relevant questions and follow-up questions, including those challenging
credibility; (2) the decisionmaker to determine whether the proposed
question is relevant and explain any decision to exclude a question as
not relevant before a party or witness answers a question; and (3) the
postsecondary institution to provide the party with an advisor of the
postsecondary institution's choice, who may be but is not required to
be an attorney, without charge to the party, for the purpose of
advisor-conducted questioning if a party does not have an advisor who
can ask questions on their behalf.
[[Page 41510]]
Relevance. Current Sec. 106.45(b)(6)(i) and (ii) limit questions
during advisor-conducted cross-examination and written cross-
examination to those that are relevant and state that questions and
evidence about the complainant's sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the
complainant's prior sexual behavior are offered to prove that someone
other than the respondent committed the conduct alleged by the
complainant, or if the questions and evidence concern specific
incidents of the complainant's prior sexual behavior with respect to
the respondent and are offered to prove consent. Although the language
in proposed Sec. 106.46(f)(1) and (3) would not explicitly refer to
the complainant's sexual predisposition or prior sexual behavior, the
same limitations regarding those concepts would be incorporated into
those proposed provisions. These limitations are explained in greater
detail in the discussion of the proposed definition of ``relevant''
(Sec. 106.2) and the discussion of relevant evidence and evidence that
is impermissible regardless of relevance in proposed Sec.
106.45(b)(7).
Additional Clarifications in the Proposed Regulations
Questions that are unclear or harassing and other rules regarding
decorum. Although the 2020 amendments do not address unclear or
harassing questions, or rules of decorum in the regulatory text, the
Department stated in the preamble to the 2020 amendments that a
recipient may adopt rules of decorum and noted that a recipient is
better positioned than the Department to adopt rules of decorum that
are tailored to its educational community. See 85 FR 30319. The
Department also stated that a recipient may prohibit advisors from
questioning parties or witnesses in an abusive, intimidating, or
disrespectful manner and may require a party to use a different advisor
if the party's advisor refuses to comply with the school's rules of
decorum. See, e.g., id. at 30319-20, 30324, 30331, 30342, 30361. For
example, the Department explained that if a party's advisor of choice
yells at others in violation of a school's rules of decorum, the school
may remove the advisor and require a replacement. See, e.g., id. at
30320, 30324, 30342. The school has this authority even when the
advisor is asking a question that is relevant to the hearing. If the
manner in which an advisor attempts to ask the question is harassing,
intimidating, or abusive (e.g., advisor yells, screams, or approaches a
witness in an intimidating manner), the preamble explained that a
school may enforce a rule requiring that relevant questions must be
asked in a respectful, non-abusive manner. See id. The Department
further stated that nothing in the 2020 amendments prohibits a
recipient from applying a rule that duplicative questions are
irrelevant, or from imposing rules of decorum that require questions to
be asked in a respectful manner as long as it applies those rules
clearly, consistently, and equally to the parties. See id. at 30331.
The Department's tentative position is that it is important to
explicitly require in the regulatory text that a postsecondary
institution prohibit questions that are unclear or harassing of the
party being questioned because a proceeding in which questions are
unclear or harassing is not an equitable proceeding and not one likely
to produce accurate information needed for evaluating the allegations
of sex-based harassment and assessing credibility which impacts the
postsecondary institution's ability to determine whether sex-based
harassment occurred and effectuate Title IX's nondiscrimination
mandate. A question would be unclear if it is vague or ambiguous such
that it would be difficult for the decisionmaker or the party being
asked to answer the question to discern what the question is about. For
example, some of the key words in the question may have more than one
meaning, or the period of time to which the question refers to may be
unclear. Under the proposed regulations, a postsecondary institution
would be permitted to request that the party or party's advisor
rephrase any questions that do not comply with these requirements.
Permitting a postsecondary institution to impose other reasonable rules
of decorum as long as it applies them equally to the parties and their
advisors is consistent with current Sec. 106.45(b) and proposed Sec.
106.45(i), which would permit a postsecondary institution to adopt
additional provisions as part of its grievance procedures as long as
they apply equally to the parties, and would also assist it in crafting
procedures that are designed to accurately assess credibility and are
also equitable for the parties. For these reasons, the Department
included language in proposed Sec. 106.46(f)(3) to make clear that a
postsecondary institution must prohibit questions that are unclear or
harassing of the party being questioned and to permit a postsecondary
institution to impose other reasonable rules regarding decorum. In
addition, when considering what other reasonable rules of decorum to
impose, if any, a postsecondary institution should be aware of current
Sec. 106.6(d), which the Department is not proposing to revise.
Current Sec. 106.6(d) states that nothing in the Title IX regulations
require a recipient to restrict any rights that would otherwise be
protected from government action by the First Amendment of the U.S.
Constitution.
Section 106.46(h) Determination of Whether Sex-Based Harassment Has
Occurred
Current regulations: Section 106.45(b)(7) requires a recipient to
issue a written determination regarding responsibility, applying the
standard of evidence described in current Sec. 106.45(b)(1)(vii). In
this written determination, a recipient must include: identification of
the allegations potentially constituting sexual harassment; a
description of the procedural steps taken from the receipt of the
formal complaint through the determination; findings of fact supporting
the determination; conclusions regarding the application of the
recipient's code of conduct to the facts; a statement of, and rationale
for, the result as to each allegation including a determination
regarding responsibility, any disciplinary sanctions the recipient
imposes on the respondent, and whether remedies will be provided by the
recipient to the complainant; and the recipient's procedures and
permissible bases for appeal. Current Sec. 106.45(b)(7) also requires
that the recipient provide this written determination to the parties
simultaneously; that the Title IX Coordinator is responsible for
effective implementation of any remedies; and provides information
about when the determination regarding responsibility becomes final.
Proposed regulations: The Department proposes reorganizing the
requirements from the current regulatory provision at Sec.
106.45(b)(7) into Sec. Sec. 106.45(b)(2), 106.45(h) and 106.46(h),
with strengthened protections for the parties and additional changes so
that this provision is consistent with other revisions proposed
throughout the regulations.
In addition to the requirements of proposed Sec. 106.45(h), which
would apply to all complaints of sex discrimination, postsecondary
institutions would have to comply with proposed Sec. 106.46(h) in the
context of complaints of sex-based harassment involving a student
complainant or student respondent. Proposed Sec. 106.46(h) would
remove the current
[[Page 41511]]
reference to the postsecondary institution's code of conduct and impose
additional requirements regarding written communications with the
parties. A postsecondary institution would have to provide a written
determination simultaneously to the parties. The written determination
would have to include a description of the alleged sex-based
harassment; information about the policies and procedures the
postsecondary institution used to evaluate the allegations; the
decisionmaker's evaluation of the relevant evidence and determination
as to whether sex-based harassment occurred; whether the decisionmaker
has found that sex-based harassment occurred; any disciplinary
sanctions to be imposed on the respondent; whether remedies other than
the imposition of disciplinary sanctions will be provided to the
complainant, and, to the extent appropriate, other students identified
to or by the postsecondary institution to be experiencing the effects
of the sex-based harassment; and the postsecondary institution's
procedures for an appeal.
Reasons: Following an investigation as set out in proposed Sec.
106.46(e), (f), and (g), a postsecondary institution would have to
provide the determination of whether sex-based harassment occurred in
writing to the parties simultaneously.
The Department also proposes revisions to improve overall clarity
and to make Sec. 106.46(h) consistent with other changes in the
regulations. Proposed Sec. 106.46(h)(1)(ii) would clarify that a
postsecondary institution must include information about the policies
and procedures that it used to evaluate the allegations in the
complaint. The proposed regulations also would clarify at Sec.
106.46(h)(1)(iii) that the written determination must provide the
decisionmaker's evaluation of relevant evidence and determination as to
whether sex-based harassment occurred. This would consolidate and
simplify the current regulations' separate requirements at Sec.
106.45(b)(7)(ii)(C) and (E) that the postsecondary institution provide
findings of fact supporting its determination and provide a statement
of, and the rationale for, the result as to each allegation, including
the postsecondary institution's determination regarding responsibility.
The Department anticipates that this consolidated requirement would
provide the parties with a more useful explanation of how a recipient
reached its determination than as required under the current
regulations, and would render unnecessary the current requirement to
provide the ``conclusions regarding the application of the recipient's
code of conduct to the facts,'' at Sec. 106.45(b)(7)(ii)(D).
Further, the Department proposes that providing this determination
in writing regarding sex-based harassment is appropriate in light of
the particular circumstances of postsecondary students, as explained in
the discussion of proposed Sec. 106.46 (Section II.F.2.c), and the
requirement that a recipient not discriminate based on sex in its
education program or activity.
Section 106.46(i) Appeals
Current regulations: Section 106.45(b)(8) requires a recipient to
offer both parties an appeal from a determination regarding
responsibility, and from a recipient's dismissal of a formal complaint
or any allegations therein on the bases of procedural irregularity, new
evidence not reasonably available at the time, or conflict of interest
or bias on the part of the Title IX Coordinator, investigator, or
decisionmaker.
Proposed regulations: The Department proposes preserving current
Sec. 106.45(b)(8) at proposed Sec. 106.46(i), including the
clarification that an appeal must be offered from a postsecondary
institution's dismissal of any complaint or any allegations in a
complaint. Proposed Sec. 106.46(i) would state that, in addition to
complying with the requirements in proposed Sec. 106.45(d)(3), a
postsecondary institution must offer the parties an appeal from a
determination that sex-based harassment occurred, and from a
postsecondary institution's dismissal of a complaint or any allegations
therein. Proposed Sec. 106.46(i) would provide required grounds for
appeal: (i) procedural irregularity that would change the determination
in the matter; (ii) new evidence that would change the outcome of the
matter and was not reasonably available at the time the recipient
dismissed the complaint or determined that sex-based harassment
occurred; and (iii) conflict of interest or bias for or against
complainants or respondents or the individual complainant or respondent
by the Title IX Coordinator, investigator, or decisionmaker that would
change the outcome of the matter. Consistent with the current
regulations, if a postsecondary institution were to offer an appeal on
additional bases, proposed Sec. 106.46(i)(2) would require that
postsecondary institution to offer that right to appeal equally to the
parties and ensure those additional bases are available to all parties.
In addition, the Department proposes to require the postsecondary
institution to comply in writing with the requirements in proposed
Sec. 106.45(d)(3)(i), (iv), and (v).
Reasons: It is the Department's tentative view that the current
regulatory text should be retained concerning postsecondary
institutions in grievance procedures involving postsecondary students
and concerning the required bases for appeal, with a small number of
revisions that reflect other proposed changes to the Title IX
regulations. Further, as discussed in proposed Sec. 106.45(d)(3), this
right to appeal also requires robust protections such as training for
appeal decisionmakers on how to serve impartially, including by
avoiding bias, conflicts of interest, and prejudgment of the facts at
issue; strict separation of the appeal decisionmakers from those who
investigated and adjudicated the underlying case to reinforce
independence and neutrality; and a reasonable, equivalent opportunity
for the parties to participate in the appeals process.
The proposed regulations would also maintain, for postsecondary
students in proposed Sec. 106.46(i), the right to appeal to a
different decisionmaker as an additional safeguard designed to protect
the integrity of the process. It is the Department's current position
that appeals can be an ``important mechanism to reduce the possibility
of unfairness or to correct potential errors made in the initial
responsibility determination.'' 85 FR 30397. Proposed Sec. 106.46(i)
would provide the same grounds for appeal in cases involving
postsecondary students as are set out in the current regulations on
appeals. More specifically, under the proposed regulations,
postsecondary institutions in cases involving one or more students must
offer the right to appeal on any of the following bases that may have
affected the postsecondary institution's determination: (i) a
procedural irregularity that would have altered the determination of
whether sex-based harassment occurred; \8\ (ii) new evidence that was
not reasonably available at the time the determination of whether sex-
based harassment occurred or dismissal was made; or (iii) if the Title
IX Coordinator, investigator, or decisionmaker had a conflict of
interest or bias for or against complainants or respondents generally,
or for or against the individual complainant or respondent. Nothing in
these proposed
[[Page 41512]]
regulations would preclude a recipient from offering additional grounds
for appeal, as long as they are offered equally to all the parties.
---------------------------------------------------------------------------
\8\ As discussed in the 2020 amendments, ``if a party disagrees
with a decisionmaker's relevance determination, the party has the
opportunity to challenge the relevance determination on appeal'' on
the basis of procedural irregularity if the relevance determination
affected the outcome. 85 FR 30349 n.1340.
---------------------------------------------------------------------------
The Department proposes substituting ``complaint'' for ``formal
complaint'' because the proposed Title IX regulations no longer use the
term ``formal complaint,'' as explained in the discussion of the
proposed definition of ``complaint'' (Sec. 106.2).
The Department also proposes referring to ``the parties'' rather
than ``both parties'' because there may be instances in which
complaints are consolidated and there is more than one complainant or
respondent in a single investigation and hearing.
Lastly, the Department proposes requiring that postsecondary
institutions fulfill the following requirements by communicating with
the parties in writing: notifying the parties when an appeal is filed;
providing the parties with a reasonable and equivalent opportunity to
make a statement supporting or challenging the outcome; and notifying
all parties of the result of the appeal, and the rationale for the
result. It is the Department's tentative view that preserving the
requirements that a postsecondary institution must comply with these
provisions in writing is appropriate in light of the particular
circumstances of postsecondary students, as explained in the discussion
of proposed Sec. 106.46 (Section II.F.2.c), and the requirement that a
recipient not discriminate based on sex in its education program or
activity.
Section 106.46(j) Informal Resolution
Current regulations: Section 106.45(b)(2)(A) requires a recipient,
upon receipt of a formal complaint, to provide written notice of any
informal resolution process to the parties who are known. Current Sec.
106.45(b)(9) also requires a recipient to provide a written notice to
the parties disclosing the following: the allegations; the requirements
of the informal resolution process, including the circumstances under
which it precludes the parties from resuming a formal complaint arising
from the same allegations; the fact that at any time prior to agreeing
to a resolution, any party has the right to withdraw from the informal
resolution process and resume the grievance process procedures with
respect to the formal complaint; and any consequences resulting from
participating in the informal resolution process, including the records
that will be maintained or could be shared.
Proposed regulations: The Department proposes preserving the
requirements currently in Sec. 106.45(b)(9). Proposed Sec. 106.44(k)
would set out the requirements a recipient would have to follow if it
chooses to offer an informal resolution process. Proposed Sec.
106.46(j) would state that if a postsecondary institution offers or
provides the parties to the grievance procedures in proposed Sec. Sec.
106.45 and 106.46, with an informal resolution process under proposed
Sec. 106.44(k), the postsecondary institution must inform the parties
in writing of the offer and of their rights and responsibilities in the
informal resolution process, and must provide the information required
under proposed Sec. 106.44(k)(3) in writing.
Reasons: The Department's tentative view is that a recipient should
continue to retain the discretion to offer the parties to a sex
discrimination complaint, including sex-based harassment complaints, an
alternative option for resolving such complaints. As explained in
greater detail in the discussion of proposed Sec. 106.44(k), the
Department recognized in the preamble to the 2020 amendments that an
informal resolution process could provide greater flexibility to
recipients in serving their educational communities. 85 FR 30403.
Further, the Department's current view continues to be that a recipient
is in the best position to determine whether an informal resolution
process would be a potential good fit for the facts and circumstances
of a particular complaint.
Finally, the Department proposes that preserving the requirements
that postsecondary institutions must comply with these provisions in
writing is appropriate in light of the particular circumstances of
postsecondary students, as explained in the discussion of proposed
Sec. 106.46 (Section II.F.2.c), and the requirement that a recipient
not discriminate based on sex it its education program or activity.
I. Assistant Secretary Review
Section 106.47 Assistant Secretary
Current regulations: Section 106.44(b)(2) states that the Assistant
Secretary will not deem a recipient's determination regarding
responsibility to be evidence of deliberate indifference by the
recipient, or otherwise evidence of discrimination under Title IX,
solely because the Assistant Secretary would have reached a different
determination based on an independent weighing of the evidence.
Proposed regulations: The Department proposes making minor
revisions to the language in current Sec. 106.44(b)(2) and moving it
to proposed Sec. 106.47.
Reasons: For clarity, the Department proposes moving the language
in current Sec. 106.44(b)(2), which concerns the Assistant Secretary's
review of a recipient's determination of whether sex-based harassment
occurred, to proposed Sec. 106.47. Proposed Sec. 106.44 would set out
actions that a recipient must take to operate its education program or
activity free from sex discrimination. Because proposed Sec. 106.47
would describe the Assistant Secretary's approach to reviewing sex-
based harassment complaints rather than describe requirements for a
recipient, the Department proposes to move current Sec. 106.44(b)(2)
to proposed Sec. 106.47. Current Sec. 106.44(b)(2) is limited to
formal complaints of sexual harassment and the Department similarly
proposes limiting the application of proposed Sec. 106.47 to
complaints of sex-based harassment. The Department continues to believe
that as stated in the preamble to the 2020 amendments, limiting this
provision to sex-based harassment complaints ``serves the interests of
complainants and respondents in resolving [sex-based] harassment
allegations, by limiting the circumstances under which a `final'
determination reached by the recipient may be subject to being set[ ]
aside and requiring the parties to go through the grievance process for
a second time.'' 85 FR 30221. In addition, the Department notes that as
explained in the preamble to the 2020 amendments, violations of these
proposed regulations may result in a recipient's determination whether
sex-based harassment occurred being set aside by OCR, but
determinations will not be overturned ``solely'' because OCR would have
weighed the evidence differently. Id.
III. Pregnancy and Parental Status
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance,''
20 U.S.C. 1681(a), but does not specifically address discrimination
related to pregnancy or parental status. The Department has the
authority to ``effectuate the provisions'' of the Title IX prohibition
on discrimination on the basis of sex in education programs or
activities receiving Federal financial assistance, specifically under
20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474.
[[Page 41513]]
A. The 1975 Title IX Regulations Related to Pregnancy and Parental
Status
As explained in the Background discussion of the History of Title
IX's Nondiscrimination Mandate and Related Regulations, the regulations
pertaining to pregnancy and parental status for students and employees
have remained consistent since HEW first promulgated them in 1975. The
regulations give effect to Title IX's prohibition on sex discrimination
in a recipient's education program or activity in two ways. First, the
Department's Title IX regulations prohibit sex discrimination based on
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom, as well as sex-based distinctions based on
parental, family, or marital status. 34 CFR 106.21(c)(1) and (2),
106.40(a), 106.40(b)(1), 106.57(a)(1), and 106.57(b). This prohibition
ensures that persons are not denied or limited in their access to a
recipient's program or activity because of sex-based stereotypes
associated with pregnancy, parenting, or marital status. Second,
current Sec. Sec. 106.21(c)(3), 106.40(b)(4), and 106.57(c) require
that a recipient treat a student or employee's pregnancy or related
conditions in the same manner with respect to certain matters as any
other temporary disability. The regulations also require a recipient to
take proactive steps, such as providing for leave and reinstatement for
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom, without the need to show comparable treatment with
persons with temporary disabilities. 34 CFR 106.40(b)(5), 106.57(d).
These provisions in the current regulations underscore that Title IX
requires a variety of implementation strategies if it is to serve as a
``strong and comprehensive measure,'' 118 Cong. Rec. at 5804 (statement
of Sen. Bayh), to ``achieve[ ] . . . the objective[ ]'' of eliminating
sex discrimination in federally subsidized education programs and
activities under 20 U.S.C. 1682, id. at 5803.
B. Need for Clarification Regarding Protections Because of Pregnancy
and Parental Status
The Title IX regulations regarding pregnancy and related conditions
have remained static for nearly a half century. In that time, much has
been learned about what appropriate standards are necessary to afford
students and employees the ability to learn and work while pregnant or
experiencing pregnancy-related conditions, and about what is necessary
to ensure that such persons are not subject to discrimination on the
basis of these conditions. As explained in greater detail in the
discussion of the specific proposed regulations, the Department heard
feedback from stakeholders through the June 2021 Title IX Public
Hearing and in meetings held in 2022 under Executive Order 12866, after
the NPRM was submitted to OMB, that revisions to the Department's Title
IX pregnancy regulations are necessary to give effect to the statute's
nondiscrimination mandate in the contemporary educational context.
Several stakeholders told the Department that the regulations are not
sufficient to ensure full access to educational and employment
opportunities for students and employees who are pregnant, experiencing
pregnancy-related conditions, or who have been pregnant. They requested
that the Department address forms of discrimination based on pregnancy
and related conditions that are not currently covered explicitly by the
regulations, such as discrimination based on past pregnancy and medical
conditions related to pregnancy and childbirth, including lactation,
and clarifying a recipient's obligation to provide reasonable
modifications to students because of pregnancy or related conditions.
Stakeholders argued that students generally may not be aware of their
rights and urged therefore that employees need better training in how
to support students who are pregnant or experiencing pregnancy-related
conditions. Further, stakeholders stressed that when simple
modifications such as leave for childbirth and recovery or intermittent
absences for lactation were not provided, students could face partial
or total exclusion from education and a loss of future economic
stability. They also asked that the Department strengthen its overall
nondiscrimination protections for discrimination related to parental
status, which is a particular issue at the postsecondary and graduate
level, where education involves the provision of research projects,
teaching assistance opportunities, and professional development
opportunities often denied to mothers. Overall, stakeholders asked that
the Department take steps to ensure that students are not denied access
to a recipient's education program or activity because of pregnancy or
a related condition, or due to sex discrimination based on parental
status, to prevent students from being forced to choose between their
children and their education.
Discrimination against students and employees who are pregnant or
experiencing pregnancy-related conditions, in the Department's
experience, often reflects sex discrimination, whether based on
``mutually reinforcing stereotypes'' about the roles of men and women,
Nevada Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 736 (2003), the
failure to accommodate conditions associated with women as effectively
as those associated with men, see id. at 730-34, or otherwise.
Importantly, this sort of discrimination can result not only from
animus, but also from sex-based indifference to the needs of this
student and employee population. Cf. Alexander v. Choate, 469 U.S. 287,
295-97 (1985) (stating that disability-based discrimination is ``most
often the product, not of invidious animus, but rather of
thoughtlessness and indifference--of benign neglect'' and thus that
discrimination can include a failure to accommodate). In the
Department's view, a policy that presents obstacles to the ability of a
student or employee who is pregnant, lactating, or experiencing other
pregnancy-related conditions to access a recipient's educational
program or activity may constitute such discrimination under Title IX.
Moreover, precisely because it is difficult to specify the
counterfactual--how accommodating would the school have been if the
person requesting an accommodation had done so for a condition
associated with men rather than women--sex-based discrimination
regarding pregnancy and related conditions will often take the form of
``subtle discrimination that may be difficult to detect on a case-by-
case basis.'' Hibbs, 538 U.S. at 736. To prevent such discrimination
and to ensure that pregnancy and related conditions are not the vector
through which sex becomes a barrier to a student's or employee's
participation in a recipient's education program or activity, proactive
measures are necessary to ensure that a recipient affords students and
employees who are pregnant or experiencing pregnancy related conditions
full access throughout their pregnancy and recovery. To address these
concerns, the Department now believes that its proposed regulations are
necessary and appropriate to fully effectuate Title IX's
nondiscrimination guarantee for both students and employees. See 20
U.S.C. 1682.
[[Page 41514]]
C. Other Relevant Statutes and Agency Interpretations
Although the proposed regulations are exclusively for the purpose
of implementing Title IX, the Department notes that the treatment of
pregnancy-related discrimination under other statutes enacted since
1975 confirms a general understanding by Congress that pregnancy-based
discrimination is a form of sex discrimination and provides additional
context for understanding how to eliminate discrimination based on
pregnancy or related conditions. For example, in 1978, three years
after the Department published its Title IX regulations, Congress
passed the Pregnancy Discrimination Act (PDA), which amended Title
VII's prohibition on sex discrimination to prohibit employers from
discriminating against employees on the basis of pregnancy, childbirth,
or related medical conditions. 42 U.S.C. 2000e(k). The PDA also
requires that women affected by pregnancy, childbirth, or related
medical conditions be treated the same as other persons not so affected
but similar in their ability or inability to work. Id.
The fact that Congress did not amend Title IX's definition of
``sex'' to explicitly include pregnancy, as it did for Title VII in
1978, does not signal Congress's intent to exclude pregnancy coverage
under Title IX. As articulated by the district court in Conley after
recounting the relevant legislative history, ``Congress passed the
Pregnancy Discrimination Act in direct response to a Supreme Court
opinion, [General Electric Co. v. Gilbert, 429 U.S. 125 (1976),] that
had substantively misinterpreted Title VII.'' Conley, 145 F. Supp. 3d
at 1084-85 (``Although it is true that Congress has never amended Title
IX's definition of sex to explicitly include pregnancy, the Court is
not persuaded that this fact signals Congress's intent on the
matter.''). In contrast, there was no corresponding Title IX-related
Supreme Court opinion that required Congress to respond. Id. at 1083-85
(stating that Congress delegated much less authority to the EEOC to
promulgate the regulation considered in Gilbert than it did to the
Department to promulgate 34 CFR 106.40, and holding that the
Department's interpretation was entitled to deference under the
standard set out in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 844 (1984)).
Courts have considered the scope of the term ``related medical
conditions'' under the PDA, particularly in connection with the issue
of lactation. In 2013, for example, the U.S. Court of Appeals for the
Fifth Circuit held that under the PDA, lactation is a medical condition
related to pregnancy, explaining that ``[i]t is undisputed . . . that
lactation is a physiological result of being pregnant and bearing a
child'' and the definition of ``medical conditions'' includes
physiological conditions. Equal Emp. Opportunity Comm'n v. Hous.
Funding II, Ltd., 717 F.3d 425, 428-29 (5th Cir. 2013). In 2017, the
U.S. Court of Appeals for the Eleventh Circuit followed suit, holding
that ``lactation is a related medical condition and therefore covered
under the PDA.'' Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1259 (11th
Cir. 2017).
In June 2015, the EEOC issued enforcement guidance on pregnancy
discrimination and related issues, which clarified that Title VII, as
amended by the PDA, prohibits discrimination based on current
pregnancy, past pregnancy, potential or intended pregnancy, and medical
conditions related to pregnancy or childbirth. 2015 EEOC Pregnancy
Guidance. The 2015 EEOC Pregnancy Guidance further emphasized that
``[b]ecause lactation is a pregnancy-related medical condition, less
favorable treatment of a lactating employee may raise an inference of
unlawful discrimination.'' Id. The 2015 EEOC Pregnancy Guidance stated
that:
To continue producing an adequate milk supply and to avoid
painful complications associated with delays in expressing milk, a
nursing mother will typically need to breastfeed or express breast
milk using a pump two or three times over the duration of an eight-
hour workday. An employee must have the same freedom to address such
lactation-related needs that she and her co-workers would have to
address other similarly limiting medical conditions. For example, if
an employer allows employees to change their schedules or use sick
leave for routine doctor appointments and to address non-
incapacitating medical conditions, then it must allow female
employees to change their schedules or use sick leave for lactation-
related needs under similar circumstances.
Id. Although the 2015 EEOC Pregnancy Guidance and related court
cases interpreting the PDA are based on Title VII, not Title IX, the
Department believes that they provide relevant background because both
statutes long have been understood to prohibit pregnancy
discrimination. Thus, Title VII and its application, including by the
EEOC, provide a persuasive perspective for the Department's
understanding of what may constitute pregnancy discrimination in modern
society. Moreover, courts often rely on interpretations of Title VII to
inform interpretations of Title IX, and both laws apply to employees in
the educational context. See, e.g., Franklin, 503 U.S. at 75; Jennings,
482 F.3d at 695; Frazier, 276 F.3d at 66; Gossett, 245 F.3d at 1176.
Like the PDA, protections in the Affordable Care Act (ACA) also
reflect the types of supports breastfeeding employees need to
participate fully in their employment. The ACA amended Section 7 of the
Fair Labor Standards Act (FLSA) to require employers to provide
reasonable break times and a private place, other than a bathroom, for
employees covered under Section 7 of the FLSA who are breastfeeding to
express milk for one year after a child's birth. 29 U.S.C. 207(r)(1).
The space must be ``shielded from view and free from intrusion from
coworkers and the public.'' Id. DOL explained in a fact sheet that the
space must be ``functional'' and ``available when needed'' because
``[t]he frequency of breaks needed to express milk as well as the
duration of each break will likely vary.'' U.S. Dep't of Labor, Fact
Sheet #73: Break Time for Nursing Mothers under the FLSA (Apr. 2018),
https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers. Under the ACA/FLSA, a temporary or converted space is
sufficient provided that the space is available when needed, shielded
from view, and free from any intrusion from co-workers and the public.
Id. The Department finds these statutes informative of how a recipient
can ensure that students and employees can continue to access the
recipient's education program or activity while experiencing a
pregnancy-related condition such as lactation. In addition, the
nondiscrimination regulatory provisions of the WIOA, which are enforced
by DOL,\9\ include a section obligating WIOA, Title I-financially
assisted programs, activities, training, and services to refrain from
discrimination based on pregnancy, childbirth, or related medical
conditions, including childbearing capacity, as a form of sex
discrimination. 81 FR 87130, 87221-22 (Dec. 2, 2016) (codified at 29
CFR 38.8), https://www.govinfo.gov/content/pkg/FR-2016-12-02/pdf/2016-27737.pdf. The WIOA nondiscrimination regulations contain a non-
exhaustive list of examples of related medical conditions, including
but not limited to lactation; disorders directly related to pregnancy
(for example, preeclampsia, placenta previa, and gestational diabetes)
and
[[Page 41515]]
other symptoms such as back pain; complications that require bed rest;
and the after-effects of a delivery. Id. at 87222. In the preamble to
the final rule, DOL explained that the regulations set out the
standards that it will apply in enforcing the prohibition on pregnancy
discrimination, and that these standards are consistent with Title IX,
as well as with Title VII as amended by the PDA. Id. at 87134.
---------------------------------------------------------------------------
\9\ DOL's Civil Rights Center enforces Section 188 of WIOA.
Section 188 of WIOA in pertinent part, incorporates the prohibitions
on discrimination in programs and activities that receive Federal
financial assistance under certain civil rights laws, including
Title VI, Title IX, and Section 504.
---------------------------------------------------------------------------
Finally, with respect to parental status, Executive Order 13152
states that to provide for a uniform policy for the Federal
government's efforts to prohibit discrimination based on a person's
parental status, ``status as a parent'' should be understood to refer
to ``the status of an individual who, with respect to an individual who
is under the age of 18 or who is 18 or older but is incapable of self-
care because of a physical or mental disability, is: (a) a biological
parent, (b) an adoptive parent, (c) a foster parent, (d) a stepparent,
(e) a custodian of a legal ward, (f) in loco parentis over such
individual, or (g) actively seeking legal custody or adoption of such
an individual.'' Executive Order 13152 on Further Amendment to
Executive Order 11478, Equal Employment Opportunity in Federal
Government, E.O. 13152, 65 FR 26115 (May 2, 2000), http://govinfo.gov/content/pkg/WCPD-2000-05-08/pdf/WCPD-2000-05-08-Pg977.pdf. Executive
Order 13152 authorized the U.S. Office of Personnel Management to
develop guidance on its provisions. Id. The scope of the Executive
Order's definition of ``status of a parent'' is informative for
interpreting the Department's longstanding Title IX regulations
regarding sex discrimination based on parental status, as it
illuminates the Federal government's recognition of the many types of
parents beyond biological parents.
Against this backdrop, and after reweighing the relevant facts and
circumstances, including a review of other civil rights laws that
prohibit discrimination based on sex, the Department proposes revising
its Title IX regulations related to pregnancy and related conditions,
as well as sex discrimination related to marital, parental, and family
status, to give greater effect to Title IX's nondiscrimination mandate
within the educational context. The Department's current view is that
in light of Title IX's focus on eliminating sex discrimination for all
students and employees, it is necessary to strengthen and clarify the
Department's regulatory protections for students and employees who are
pregnant or experiencing pregnancy-related conditions, as well as those
that prevent sex discrimination related to marital, parental, and
family status.
D. Revised Definitions
Section 106.2 Definition of ``pregnancy or related conditions''
Current regulations: The current regulations do not define the term
``pregnancy and related conditions.'' However, with respect to
students, current Sec. 106.40(b) uses that term as a section title.
Current Sec. 106.21(c)(2) prohibits discrimination against applicants
for admission on the basis of ``pregnancy, childbirth, termination of
pregnancy, or recovery therefrom'' and states that a recipient must
treat ``disabilities related to pregnancy, childbirth, termination of
pregnancy, or recovery therefrom'' in the same manner and under the
same policies as any other temporary disability. Current Sec.
106.40(b)(1) also prohibits discrimination against a student on the
basis of ``pregnancy, childbirth, false pregnancy, termination of
pregnancy, or recovery therefrom.'' With respect to employees, current
Sec. 106.57(b) and (d) prohibits discrimination against an employee on
the basis of ``pregnancy, childbirth, false pregnancy, termination of
pregnancy, or recovery therefrom''; states that ``any temporary
disability resulting therefrom'' must be treated as any other temporary
disability; and specifies that those situations must be used as a
justification for leave. Finally, current Sec. 106.51(b)(6) states
that the subpart regarding employees applies to ``granting and return
from leaves of absence, leave for pregnancy, childbirth, false
pregnancy, termination of pregnancy, leave for persons of either sex to
care for children or dependents, or any other leave.''
Proposed regulations: The Department proposes adding a definition
of the term ``pregnancy or related conditions'' at proposed Sec.
106.2. The Department proposes defining ``pregnancy or related
conditions'' as:
(1) Pregnancy, childbirth, termination of pregnancy, or lactation;
(2) Medical conditions related to pregnancy, childbirth,
termination of pregnancy, or lactation; or
(3) Recovery from pregnancy, childbirth, termination of pregnancy,
lactation, or their related medical conditions.
Reasons: The Department's tentative view is that the current
regulations may be misconstrued as leaving gaps in coverage of
discrimination based on ``pregnancy,'' ``related conditions,'' or
``recovery therefrom'' because the regulations do not clearly define
those terms. The proposed changes would clarify a recipient's
obligations under Title IX to students and employees who are pregnant
or experiencing pregnancy-related conditions to ensure full
implementation of Title IX's nondiscrimination requirement. For
example, the current regulations do not specify the status of medical
conditions that are related to or caused by pregnancy, childbirth,
termination of pregnancy, loss of pregnancy, or lactation but that are
not necessarily related to ``recovery'' from pregnancy. These include a
variety of common conditions including, for example, gestational
diabetes, preeclampsia, hyperemesis gravidarum (i.e., severe nausea and
vomiting), mastitis, and many others. The proposed definition would
explicitly include related medical conditions. Finally, the proposed
regulations would clarify that discrimination based on lactation is
covered by Title IX's prohibition on discrimination based on pregnancy-
related conditions.
Discrimination based on any of these conditions and situations may
present serious impediments to, and can lead to loss of, learning or
employment for students and employees seeking to access a recipient's
education program or activity while at the same time managing health
impacts of pregnancy or related conditions. The proposed definition
would more fully implement Title IX by clarifying that Title IX covers
discrimination based on medical conditions related to or caused by
pregnancy, childbirth, termination of pregnancy, or lactation, even if
they are not related to ``recovery from pregnancy.''
Because the Department's Title IX regulations have provided
important protections for students and applicants against
discrimination in access to educational opportunities based on recovery
from pregnancy, childbirth, and termination of pregnancy since they
were first promulgated in 1975, the Department proposes clarifying that
Title IX's scope of coverage includes discrimination based on recovery
from related medical conditions as well.
The Department's proposed definition would remove the term ``false
pregnancy,'' which appears in current Sec. Sec. 106.40(b)(1),
106.40(b)(4) and (5), 106.51(b)(6), and 106.57(b) through (d). The
Department's current view is that the meaning of this term is unclear
in the contemporary context and could bear multiple interpretations,
including a pregnancy that is suspected, but not confirmed; a pregnancy
that is falsely confirmed; or another medical condition that is
clinically similar to pregnancy. To eliminate confusion and
uncertainty,
[[Page 41516]]
the Department proposes interpreting ``pregnancy'' in proposed Sec.
106.2 to encompass a student's or employee's belief about either the
student's or employee's own pregnancy or someone else's. For example,
if a student takes a pregnancy test that shows a positive test result,
tells the recipient about the pregnancy, and the recipient then refuses
to allow the student to participate in the student council based on the
student's pregnancy, the student would be protected from discrimination
under this proposed definition even if, later, the student learned that
the pregnancy test result was a false positive. Likewise, if an
administrator believes--based on external physical indicators and a
report from a colleague--that a professor is pregnant and assigns the
professor fewer classes because of this, the professor would also be
protected from discrimination under this proposed definition regardless
of whether the professor was pregnant.
Section 106.2 Definition of ``Parental Status''
Current regulations: None. Current Sec. Sec. 106.21(c)(1),
106.37(a)(3), 106.40(a), and 106.57(a)(1) prohibit sex-based
distinctions on the basis of ``parental status'' pertaining to students
and applicants for admission, but do not define that term.
Proposed regulations: The Department proposes adding a definition
of the term ``parental status'' at Sec. 106.2, as used in proposed
Sec. Sec. 106.21(c)(2)(i), 106.40(a), and 106.57(a)(1), and current
Sec. 106.37(a)(3). The Department proposes defining ``parental
status'' as the status of a person who, with respect to another person
who is under the age of 18 or who is 18 or older but is incapable of
self-care because of a physical or mental disability, is:
(1) A biological parent;
(2) An adoptive parent;
(3) A foster parent;
(4) A stepparent;
(5) A legal custodian or guardian;
(6) In loco parentis with respect to such a person; or
(7) Actively seeking legal custody, guardianship, visitation, or
adoption of such a person.
Reasons: As explained in the Background discussion of the History
of Title IX's Nondiscrimination Mandate and Related Regulations, the
Department has prohibited sex discrimination related to parental status
since 1975. The Department recognizes that sex stereotypes about who
bears responsibility for raising children are still common and may
affect student- and employee-parents in accessing educational
opportunities even though TitleIX has long prohibited sex
discrimination based on parental status. To provide clarity regarding
this protection for recipients and others given the absence of a
definition in the current regulations, the Department proposes adding a
definition of ``parental status'' that would apply to proposed
Sec. Sec. 106.21(c)(2)(i), 106.40(a), and 106.57(a)(1), and current
Sec. 106.37(a)(3), the only four provisions of the proposed
regulations that reference different treatment based on sex related to
the parental status of applicants for admission or employment,
students, and employees. The proposed definition would specify that a
recipient must not discriminate against students, employees, or
applicants for admission or employment who have caregiving
responsibilities for others based on the status of being a biological
or adoptive parent, guardian, foster parent, stepparent, legal
custodian, or in loco parentis, or those who are actively seeking legal
custody, adoption, visitation, or guardianship. This proposed change is
informed by the definition of ``status as a parent'' in Executive Order
13152, which prohibits discrimination in Federal employment based on an
individual's status as a parent. As noted in the discussion of Other
Relevant Statutes and Agency Interpretations (Section III.C), that
Executive Order is informative background as to how Federal agencies
should understand the concept of parental status in light of the
various configurations of families.
E. Admissions
Section 106.21 Admissions
Current regulations: The section heading is ``Admission.''
Proposed regulations: The Department proposes changing this section
heading to ``Admissions.''
Reasons: The proposed section heading would align with the section
heading at current Sec. 106.15.
Section 106.21(a) Admissions--Status Generally
Current regulations: The section heading is ``General.''
Proposed regulations: The Department proposes changing this section
heading to ``Status generally.'' As described in the discussion of
Outdated Regulatory Provisions (Section VI), the Department also
proposes removing references to Sec. Sec. 106.16 and 106.17 from this
paragraph because those sections are no longer operative.
Reasons: The proposed section heading would more accurately
describe the content of the section and would align with proposed
Sec. Sec. 106.40(a) and 106.57(a).
Section 106.21(c) Parental, Family, or Marital Status; Pregnancy or
Related Conditions
Current regulations: Section 106.21(c)(1) prohibits a recipient
from treating students or applicants for admission differently based on
sex in relation to their ``actual or potential parental, family, or
marital status.'' It also prohibits discrimination and exclusion on the
basis of ``pregnancy, childbirth, termination of pregnancy, or recovery
therefrom,'' and requires pregnancy-related disabilities to be treated
in the same manner as other temporary disabilities or conditions.
Finally, current Sec. 106.21(c)(4) prohibits pre-admission inquiries
regarding marital status and limits inquiries as to sex.
Proposed regulations: The Department proposes revisions to clarify
the scope of current Sec. 106.21(c), make this section consistent with
related provisions at proposed Sec. 106.40, and enhance readability.
Specifically, the Department proposes to:
Revise the section heading to ``Parental, family, or
marital status; pregnancy or related conditions'';
Reorganize the section by separating items that require or
prohibit certain actions by recipients;
Replace the term ``disabilities related to pregnancy,
childbirth, termination of pregnancy, or recovery therefrom'' with
``pregnancy or related conditions or any temporary disability resulting
therefrom'';
Clarify that the scope of coverage includes ``past''
parental, family, or marital status;
Clarify that the scope of coverage includes ``current,
potential, or past pregnancy or related conditions'';
Replace ``rule'' with ``policy, practice, or procedure'';
Replace ``apply'' with ``adopt or apply'';
Replace ``actual'' with ``current'';
Delete ``exclude'' and ``excludes''; and
Replace ``A recipient may make pre-admission inquiry as to
the sex of an applicant for admission, but only if such inquiry is made
equally of such applicants of both sexes and if the results of such
inquiry are not used in connection with discrimination prohibited by
this part'' with ``A recipient may ask an applicant to self-identify
their sex, but only if this question is asked of all applicants and if
the response is not used as a basis for discrimination prohibited by
this part.''
[[Page 41517]]
Reasons: Changes for clarity, consistency, and readability. The
Department proposes revising the section heading for proposed Sec.
106.21(c) to better reflect the content of the subsection. The
Department also proposes replacing ``shall'' with ``must'' and
reorganizing the section by dividing the ``must'' from the ``must not''
provisions for better readability. In addition, the Department proposes
replacing the term ``pregnancy, childbirth, termination of pregnancy,
or recovery therefrom'' with ``pregnancy or related conditions'' to
align with the proposed definition of ``pregnancy or related
conditions'' in proposed Sec. 106.2.
Changes to scope of coverage. The Department proposes replacing
``actual'' with ``current'' in proposed Sec. 106.21(c)(2)(ii). The
Department proposes making this minor change throughout the regulations
at proposed Sec. Sec. 106.21(c) and 106.40 to add clarity and
consistency to the regulations. Because the Department's proposed
regulations would cover perceived pregnancy under the definition of
``pregnancy or related conditions'' in proposed Sec. 106.2, the
Department now believes that ``actual'' may cause confusion and be
unduly limiting. ``Current'' would include the period of reasonable
belief of pregnancy or related conditions. The Department further
proposes clarifying that the scope of coverage in proposed Sec.
106.21(c)(2)(ii) includes ``current, potential, or past pregnancy or
related conditions'' to more fully address sex discrimination facing
applicants at various points. This change would be consistent with
similar proposed revisions to scope of coverage at proposed Sec. Sec.
106.40(b)(1) and 106.57(b) pertaining to students and employees,
respectively. Likewise, the Department proposes adding Sec.
106.21(c)(2)(i) to clarify that the scope of coverage includes past
parental, family, or marital status. This addition would make clear
that prohibited sex discrimination includes discrimination based on sex
related to a previously held parental, family, or marital status. For
example, if a recipient refused to admit a woman to a graduate program
because she was previously married, but admitted a previously married
man with similar qualifications, this would be a prohibited form of sex
discrimination under the proposed regulations.
The proposed regulations also would clarify that covered actions
include a recipient's policies, practices, and procedures. The purpose
of this change would be to encompass a broader range of recipient
actions that could be forms of sex discrimination based on parental,
family, or marital status and to prevent circumvention by reliance on
policies, practices, or procedures not reflected in the recipient's
formal or informal rules. Likewise, the addition of ``adopt'' would
indicate that a policy, practice, or procedure that is formally or
informally decided upon would be subject to the proposed regulations,
as well as those that are passed or otherwise announced formally but
not yet applied in an individual case, and those that have been acted
upon. For example, if a recipient announced a policy that student
fathers, but not student mothers, could be admitted to a law
enforcement training program, this policy would potentially violate
proposed Sec. 106.21(c)(2)(i) even if the recipient had not yet
applied it to any student. Both changes mentioned in this paragraph
would be consistent with changes proposed in a similar section related
to parental, familial, and marital status at proposed Sec. 106.40(a).
The Department proposes replacing the term ``disabilities related
to pregnancy, childbirth, termination of pregnancy, or recovery
therefrom'' with ``pregnancy or related conditions or any temporary
disability resulting therefrom'' in proposed Sec. 106.21(c)(1).
``Disabilities related to pregnancy'' could be interpreted to suggest
that applicants would not be covered under the provision unless they
had a disability under Section 504 or the ADA, something that could be
difficult for a recipient or an applicant to ascertain during the
admissions process. It also leaves unclear whether a pregnant student
who is not experiencing any additional pregnancy-related conditions
would be protected under the current regulations. The proposed change
would clarify that an applicant who is pregnant or experiencing
pregnancy-related conditions or a temporary disability resulting
therefrom must be treated in the same manner and under the same
policies as those who have other temporary disabilities or physical
conditions, simplifying the analysis both for the recipient and
applicants. The proposed change would also align with the language the
Department suggests in proposed Sec. Sec. 106.40(b)(5) and 106.57(c).
The Department proposes deleting ``exclude'' and ``excludes'' in
proposed Sec. 106.21(c)(2)(ii) because they are used only occasionally
in the current regulations to refer to discrimination and such
intermittent use may cause confusion. Throughout the current and
proposed regulations, the Department interprets ``discriminate'' to
encompass exclusion.
Pre-admission inquiries. In proposed Sec. 106.21(c)(2)(iii), the
Department proposes replacing the term ``in connection with
discrimination'' with ``as a basis for discrimination'' to enhance
clarity and consistency with usage elsewhere in the proposed
regulations but does not intend this as a substantive change in
meaning. In addition, the Department proposes revising the last
sentence in Sec. 106.21(c)(2)(iii) to use the term ``all applicants''
instead of the term ``both sexes'' in recognition of the fact that some
applicants may have a nonbinary gender identity. For the same reason,
if a recipient asks applicants to self-identify their sex and provides
options from which applicants may choose, nothing in the current or
proposed regulations would prohibit a recipient from offering nonbinary
options in addition to male and female options.
F. Discrimination Based on a Student's Parental, Family, Marital
Status, Pregnancy, or Related Conditions
Section 106.40 Parental, Family, or Marital Status; Pregnancy or
Related Conditions
Current regulations: The section heading is ``Marital or parental
status.''
Proposed regulations: The Department proposes changing this section
heading to ``Parental, family, or marital status; pregnancy or related
conditions.''
Reasons: The proposed section heading would more accurately
describe the content of the section.
Section 106.40(a) Status Generally
Current regulations: Section 106.40(a) states that a ``recipient
shall not apply any rule concerning a student's actual or potential
parental, family, or marital status which treats students differently
on the basis of sex.''
Proposed regulations: The Department proposes the following edits
to current Sec. 106.40(a):
Replacing ``rule'' with ``policy, practice, or
procedure'';
Changing ``apply'' to ``adopt or apply''; and
Changing ``actual or potential'' to ``current, potential,
or past.''
Reasons: The Department proposes several changes to clarify the
scope of conduct prohibited by this section. First, as explained in
greater detail in the discussion of proposed Sec. 106.21(c), the
proposed regulations would add to the types of actions that are subject
to the prohibition to prevent circumvention by reliance on policies,
practices, or procedures not reflected in the recipient's express
rules. For
[[Page 41518]]
example, if a high school had an informal practice of not inviting
pregnant students to join the honor society, this action would violate
proposed Sec. 106.40(a) even if the practice was not written into any
rule formally governing the activity. Likewise, if a recipient passed a
policy that student mothers could not participate in class field trips,
this policy would violate proposed Sec. 106.40(a) even if the
recipient had not yet applied it to any student.
Second, the proposed regulations would clarify that a recipient is
not permitted to adopt policies, practices, or procedures that treat
students differently on the basis of sex; current Sec. 106.40(a)
references only the application of such a rule. Use of the term
``adopted'' would indicate that the proposed regulations would cover a
policy, practice, or procedure that is formally or informally decided
upon; those that are passed or otherwise announced formally but not yet
applied in an individual case; and those that have been acted upon. The
proposed regulations would therefore cover policies, practices, and
procedures without requiring an analysis of whether they had been
applied to a student.
Finally, to clarify coverage and maintain consistency with a
similar provision at proposed Sec. 106.21(c) regarding admissions, the
Department proposes replacing the terms ``actual or potential'' with
the terms ``current, potential, or past.'' As explained in the
discussion of proposed Sec. 106.21(c), this revision would help ensure
that students are more fully protected from discrimination, recognizing
that a person can be subject to sex stereotypes due to past status as
well as present status.
Section 106.40(b) Pregnancy or Related Conditions
Current regulations: The section heading is ``Pregnancy and related
conditions.''
Proposed regulations: The Department proposes changing this section
heading to ``Pregnancy or related conditions.''
Reasons: The proposed section heading would more accurately
describe the content of the section and would be consistent with the
proposed definition of ``pregnancy or related conditions'' at Sec.
106.2.
Section 106.40(b)(1) Pregnancy or Related Conditions--Nondiscrimination
Current regulations: Section 106.40(b)(1) prohibits a recipient
from discriminating against or excluding a student from its education
program or activity, including any class or extracurricular activity,
on the basis of such student's pregnancy, childbirth, false pregnancy,
termination of pregnancy or recovery therefrom, unless the student
requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
Current Sec. 106.40(b)(3) states that a recipient that operates a
portion of its education program or activity separately for pregnant
students to which students may voluntarily admit themselves must ensure
that the separate portion is comparable to that offered to non-pregnant
students.
Proposed regulations: Proposed Sec. 106.40(b)(1) would prohibit a
recipient from discriminating against any student based on current,
potential, or past pregnancy or related conditions. The Department also
proposes revising this provision to incorporate the requirement in
current Sec. 106.40(b)(3) that a recipient may permit a student based
on pregnancy or related conditions to participate voluntarily in a
separate portion of its education program or activity provided the
recipient ensures that the separate portion is comparable to that
offered to students who are not pregnant and do not have related
conditions.
Reasons: Proposed Sec. 106.40(b)(1) would merge related and
overlapping aspects of current Sec. 106.40(b)(1) and (3), which
prohibit discrimination based on pregnancy or related conditions and
permit a recipient to allow a pregnant student or a student
experiencing pregnancy-related conditions to voluntarily opt into
separate portions of the recipient's education program or activity
provided the recipient ensures comparability with the standard
education program or activity.
The Department proposes clarifying the scope of the
nondiscrimination provision to cover current, potential, or past
pregnancy or related conditions because protecting students from
discrimination on these bases helps to achieve Title IX's objective of
eradicating sex discrimination in federally funded education programs
or activities. Title IX was enacted in large part because women were
being denied educational access due to views that they were less
capable and less committed to academic demands given their pregnancy
and childrearing obligations. See 118 Cong. Rec. at 5804 (statement of
Sen. Bayh, sponsor of Title IX, explaining the widespread but false
perception that women are disinterested in education or professional
achievement because the duty or desire to marry and bear children has
led to sex discrimination in education). Clarifying Title IX's
protections to cover current, potential, or past pregnancy or related
conditions would ensure that a student is not treated unfairly in the
educational context due to, for example, a likelihood of having
children in the future, having had children in the past or experienced
pregnancy-related medical conditions. Although not the basis for this
proposal, the Department notes that this scope of coverage would be
like that provided by the PDA, which the EEOC has recognized covers
current, potential, and past pregnancy. 2015 EEOC Pregnancy Guidance.
This scope of coverage has contributed to addressing barriers to
employment and professional achievement, and it is the Department's
current view that, fundamental to the purpose of Title IX, it would
help address the barriers to educational access arising from false
perceptions about pregnancy and childbearing plans.
Section 106.40(b)(2) Pregnancy or Related Conditions--Requirement for
Recipient to Provide Information
Current regulations: Section 106.40(b)(1) addresses pregnancy-
related nondiscrimination requirements. Current Sec. 106.8(a) requires
a recipient to designate a Title IX Coordinator to coordinate its
efforts to comply with Title IX. Current Sec. 106.8(b) requires that a
recipient notify its students of the recipient's nondiscrimination
policy and that inquiries about a recipient's Title IX obligations may
be referred to the Title IX Coordinator.
Proposed regulations: Proposed Sec. 106.40(b)(2) would require a
recipient to ensure that when any employee is informed of a student's
pregnancy or related conditions by the student or a person who has a
legal right to act on behalf of the student, the employee promptly
informs that person of how to notify the Title IX Coordinator of the
student's pregnancy or related conditions for assistance and provides
contact information for the Title IX Coordinator, unless the employee
reasonably believes the Title IX Coordinator has already been notified.
Reasons: The Department's proposed provision seeks to effectuate
Title IX's goal of preventing sex discrimination by ensuring that when
an employee of a recipient is informed of a student's pregnancy or
related conditions by the student or a person who has a legal right to
act on behalf of the student, the employee is required to inform that
person how they may contact the Title IX Coordinator for assistance. In
doing so, the Department's proposed provision takes into account the
student's interest
[[Page 41519]]
in being free from sex discrimination and accessing necessary support
and the right of the student and the student's legal representatives to
control what information is shared with a recipient regarding a
student's pregnancy or related health status, as well as when the
information is shared. The Department also seeks to consider the
administrative burden to recipients in carrying out this critical
informational function.
Under the proposed regulations, only when a student informs an
employee of the student's pregnancy would the employee be required to
provide the student with information about how to notify the Title IX
Coordinator. Similarly, only when a person who has a legal right to act
on behalf of the student informs an employee of the student's pregnancy
would the employee be required to provide that person information about
accessing to the Title IX Coordinator. In either case, unless the
employee reasonably believes the Title IX Coordinator has already been
notified, the employee would be responsible for telling the person who
contacted them only two things: (1) how the person may notify the Title
IX Coordinator of the student's pregnancy or related conditions for
assistance; and (2) contact information for the Title IX Coordinator.
The Department expects that providing this information will be
sufficient to inform the person of their option to contact the Title IX
Coordinator as they see fit. The proposed regulations would also ensure
that if a student or a person who has a legal right to act on behalf of
the student preferred not to report the student's pregnancy to the
Title IX Coordinator, the person would have no obligation to do so.
The Department intends the term ``a person who has a legal right to
act on behalf of the student'' to be interpreted consistent with
proposed Sec. 106.6(g), which would not impose limitations on ``any
legal right of a parent, guardian, or other authorized legal
representative to act on behalf of'' a student, subject to the FERPA
statute, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part
99. Although a recipient would need to make a fact-specific
determination, for purposes of proposed Sec. 106.40(b)(2), ``a person
who has a legal right to act on behalf of the student'' would typically
include the parents or legal guardians of minor students, legal
guardians of adult students (for example, in the case of a student with
significant disabilities), and authorized legal representatives of
youth in out-of-home care. For example, under proposed Sec.
106.40(b)(2), if the parent of a minor student informs a high school
teacher of a student's pregnancy, the teacher would have to tell the
parent how to notify the Title IX Coordinator and provide contact
information. However, if the parent of an adult student in graduate
school who does not have a legal right to act on behalf of the student
contacted the student's advisor to inform the advisor of the student's
pregnancy, the advisor would not be required to inform the parent of
how to notify the Title IX Coordinator. The Department anticipates this
approach would support the rights of parents of younger students while
respecting the privacy interests of older students.
The Department is mindful of recipient resources and submits that
the proposed regulations are appropriately tailored and straightforward
to implement. For example, an employee would not be required to act
under this provision when the employee only suspects that a student is
pregnant based on observation of physical indicators or rumor, or when
told by a third party who is not a person with a legal right to act on
behalf of the student. The proposed regulations would not require a
recipient's employees to inquire whether a student is pregnant based on
physical indicators often associated with pregnancy.\10\ And under the
proposed regulations, the employee would not have a duty to provide the
student, or a person who has a legal right to act on behalf of the
student, with information about the Title IX Coordinator if the
employee reasonably believes the Title IX Coordinator has already been
notified. For example, if a student tells her professor that she is
pregnant, but the professor has already been informed of this fact by
the Title IX Coordinator who notified the professor about the student's
upcoming parental leave, the professor would not be required to tell
the student how to contact the Title IX Coordinator.
---------------------------------------------------------------------------
\10\ The Department notes, however, that in elementary schools
and secondary schools, Section 504 imposes a continuing duty on
school districts to identify any student who needs or is believed to
need special education or related services because of a disability
and seek parental consent to evaluate the student to determine, in
part, what, if any, special education or related services are
appropriate. 34 CFR 104.35; U.S. Dep't of Educ., Office for Civil
Rights, Parent and Educator Resource Guide to Section 504 in Public
Elementary and Secondary Schools at 12, 19 (Dec. 2016), http://www.ed.gov/ocr/docs/504-resource-guide-201612.pdf. Depending on the
specific circumstances, information about pregnancy-related
conditions may initiate such a duty. For example, if Student A tells
her high school teacher that a classmate, Student B, is home on bed
rest due to pregnancy-related high blood pressure, this may be
sufficient to trigger the school's obligation to evaluate the
student for areas of suspected physical disability. In addition, a
recipient and its employees may have obligations under State and
local laws requiring notification or reporting of child abuse, child
molestation, sexual abuse, rape, or incest.
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The Department expects the proposed regulations would also be
easily understood by employees because there is little ambiguity as to
when they are required to act: if a student, or a person who has a
legal right to act on behalf of the student, informs an employee that
the student is pregnant or experiencing pregnancy-related conditions,
the employee would have to provide the two pieces of basic information
(how to notify the Title IX Coordinator and contact information for the
Title IX Coordinator) to the student or the person who has a legal
right to act on behalf of the student unless the employee knew or
reasonably believed that the Title IX Coordinator was already informed.
In addition, the provision would be helpful to students and their
families because it would not require them to have any advance
knowledge of a recipient's available supports or to invoke specific
words or requests for the employee to be required to provide them with
information about the Title IX Coordinator. The standard also would
afford recipients flexibility based on a student's age and maturity
level. Providing information as to how to notify the Title IX
Coordinator would differ depending on the student's age and maturity
level. Nothing would prohibit an employee from offering to go with a
student to the Title IX Coordinator or, at the student's option,
contacting the Title IX Coordinator on the student's behalf; however,
this is likely more appropriate at the elementary school or secondary
school level and may not be necessary for a college student. Overall,
the Department's current view is that this provision would empower
students and their families to decide whether they wish to obtain
school-based supports at a potentially vulnerable time, thereby
avoiding sex discrimination to the greatest extent possible.
Section 106.40(b)(3) Pregnancy or Related Conditions--Specific Actions
To Prevent Discrimination and Ensure Equal Access
Current regulations: Section 106.40(b)(1) addresses pregnancy-
related nondiscrimination requirements. Current Sec. 106.40(b)(4)
requires a recipient to treat ``pregnancy, childbirth, false pregnancy,
termination of pregnancy and recovery'' similarly to any other
temporary disability in certain contexts. Current Sec. 106.40(b)(5)
addresses leaves of absence. Current Sec. 106.40(b)(5) states that if
a recipient does not maintain a leave policy for its
[[Page 41520]]
students, or a student does not otherwise qualify for leave under such
a policy, a recipient will treat ``pregnancy, childbirth, false
pregnancy, termination of pregnancy and recovery therefrom'' as a
justification for a leave of absence ``for so long a period of time as
is deemed medically necessary by the student's physician, at the
conclusion of which the student shall be reinstated to the status which
she held when the leave began.''
Proposed regulations: Proposed Sec. 106.40(b)(3) would combine
aspects of the current regulations with specific actions the Title IX
Coordinator would be required to take to ensure that a student who is
pregnant or experiencing pregnancy-related conditions is not subject to
discrimination and has equal access to the recipient's education
program or activity. Once the student, or a person who has a legal
right to act on behalf of the student, notifies the Title IX
Coordinator of a student's pregnancy or related conditions, the Title
IX Coordinator or appropriate designee would be required to promptly
take four steps:
(i) Inform the student, and if applicable the person who notified
the Title IX Coordinator, of the recipient's obligations to: (A)
prohibit sex discrimination, including sex-based harassment; (B)
provide the student with the option of reasonable modifications to the
recipient's policies, practices, or procedures because of pregnancy or
related conditions; (C) allow access, on a voluntary basis, to any
separate and comparable portion of the recipient's education program or
activity; (D) allow a voluntary leave of absence; (E) ensure the
availability of lactation space; and (F) maintain grievance procedures
that provide for the prompt and equitable resolution of complaints of
sex discrimination, including sex-based harassment;
(ii) Provide the student with the option of reasonable
modifications to the recipient's policies, practices, or procedures, as
described in proposed Sec. 106.40(b)(4), because of pregnancy or
related conditions;
(iii) Allow the student to take a voluntary leave of absence from
the recipient's education program or activity to cover, at minimum, the
period of time deemed medically necessary by the student's physician or
other licensed healthcare provider. To the extent that a recipient
maintains a leave policy for students that allows a greater period of
time than the medically necessary period, the recipient must permit the
student to take leave under that policy instead if the student so
chooses. Upon the student's return to the recipient's education program
or activity, the student must be reinstated to the academic status and,
as practicable, extracurricular status held when the leave began; and
(iv) Ensure the availability of a lactation space, which must be a
space other than a bathroom, that is clean, shielded from view, free
from intrusion from others, and may be used by a student for expressing
breast milk or breastfeeding as needed.
Reasons: As noted in the discussion of the 1975 Title IX
Regulations Related to Pregnancy and Parental Status (Section III.A),
although the Title IX regulations have long recognized that proactive
steps such as leave and reinstatement may be necessary to help to
prevent discrimination based on pregnancy or related conditions and
other forms of sex discrimination and to ensure that students are not
denied equal access on the basis of pregnancy or related conditions,
the Department proposes this new provision to clarify how a recipient
must ensure nondiscrimination when notified about a student's pregnancy
or related condition and provide recipients with a simplified framework
for compliance.
Notice. The Title IX Coordinator's responsibilities under this
provision would be initiated upon notice to the Title IX Coordinator
from the student--or a person who has a legal right to act on behalf of
the student--of the student's pregnancy or related conditions. At that
point, the Title IX Coordinator would be required to take the specific
actions set out in proposed Sec. 106.40(b)(3) to ensure that the
recipient takes steps to prevent inadvertent discrimination and ensure
that the student is not excluded from the recipient's education program
or activity. As explained in the discussion of proposed Sec.
106.40(b)(2), the Department interprets the term ``a person who has a
legal right to act on behalf of the student'' to be consistent with
proposed Sec. 106.6(g), which does not impose limitations on ``any
legal right of a parent, guardian, or other authorized legal
representative to act on behalf of'' a student, subject to the FERPA
statute, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part
99. Although a recipient would be required to make a fact-specific
determination as to who constitutes ``a person who has a legal right to
act on behalf of the student'' for purposes of proposed Sec.
106.40(b)(3), this group would typically include the parents or legal
guardians of minor students, legal guardians of adult students (for
example, in the case of a student with significant disabilities), and
authorized legal representatives of youth in out-of-home care. Under
proposed Sec. 106.40(b)(3), if the parent of a minor student were to
inform the Title IX Coordinator of a student's pregnancy, the Title IX
Coordinator would be obligated to take the steps set forth in proposed
Sec. 106.40(b)(3), including providing information regarding the
recipient's obligations to both the parent and the student. However, if
the parent of an adult student in graduate school who does not have a
legal right to act on behalf of the student contacted the Title IX
Coordinator to inform the Title IX Coordinator of the student's
pregnancy, the Title IX Coordinator would not be obligated to take the
steps set forth in Sec. 106.40(b)(3) because parent does not have a
legal right to act on behalf of the student. The Department believes
this approach would account for the rights of parents of younger
students, while respecting the privacy interests of older students. A
student would also have the right to directly inform the Title IX
Coordinator of the student's pregnancy or related conditions, which
would require the Title IX Coordinator to take the steps set out in
proposed Sec. 106.40(b)(3).
The Department's current view is that the proposed notice standard
would aid students, their families and representatives, and recipients
because it would clarify that the student and those with legal rights
to act on behalf of the student are the appropriate persons for sharing
information about a student's pregnancy or related conditions with the
Title IX Coordinator. As explained in the discussion of the requirement
for recipient to provide information in proposed Sec. 106.40(b)(2),
neither a student nor a person who has a legal right to act on behalf
of the student would be obligated to disclose the student's pregnancy
to the recipient. And, cognizant both of student privacy and recipient
resources, the Title IX Coordinator would not be required to take the
steps described in proposed Sec. 106.40(b)(3) based only on
observation of physical characteristics, rumors, or information from a
third party who does not have a legal right to act on behalf of the
student.
Informing of the recipient's obligations. The Title IX Coordinator
would be required, after receiving notice of a student's pregnancy or
related conditions to inform the student--and if applicable any person
who has the legal right to act on behalf of the student to the extent
that person notified the Title IX Coordinator--of the recipient's
obligations under Title IX. This
[[Page 41521]]
information would inform the student and a person who has a legal right
to act on behalf of the student of the recipient's duties and the
student's options. It would enable the student to voluntarily request
reasonable modifications because of pregnancy or related conditions
that would prevent discrimination, ensure continuing access to the
recipient's education program or activity, and assist the student in
understanding the recipient's obligations to the student going forward.
The recipient would also need to consider whether the student's
pregnancy or related conditions separately require a determination of
whether a student is covered under Section 504. Depending on the
precise facts, certain pregnancy-related conditions--including, for
example, preeclampsia, gestational diabetes, and postpartum depression,
among others--could be considered disabilities under Section 504.
Reasonable modifications for students because of pregnancy or
related conditions. The Department believes that providing a student
with the option of reasonable modifications to the recipient's
policies, practices, or procedures because of pregnancy or related
conditions is essential to preventing pregnancy-based discrimination
and to ensuring equal access to a recipient's education program or
activity. Proposed Sec. 106.40(b)(3)(ii) would require the Title IX
Coordinator to provide the student with the option of such
modifications. The standards for these proposed voluntary reasonable
modifications are explained in greater detail in the discussion of
proposed Sec. 106.40(b)(4).
Voluntary leave of absence. Current Sec. 106.40(b)(5) states that
``in the case of a recipient which does not maintain a leave policy for
its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy'' or related conditions ``as justification for a leave of
absence for so long a period of time as is deemed medically necessary
by the student's physician.'' It is the Department's tentative view
that, in the case of a recipient that maintains a leave policy, it may
be unclear whether the appropriate length of leave is determined by the
recipient's policy or the period of medical necessity, and which trumps
if those two periods differ. Also, some recipients, particularly
elementary schools and secondary schools, may not maintain such
policies for students.
To increase clarity for recipients and students, proposed Sec.
106.40(b)(3)(iii) would preserve the right of a student who is pregnant
or experiencing related conditions to take a leave of absence from the
recipient's education program or activity for at least a medically
necessary period, and to be reinstated to the same academic and, as
practicable, extracurricular status upon return. The Department
proposes revisions to clarify that any leave of absence must be
voluntary and that the medically necessary period is only a minimum
requirement. A recipient would be free to provide additional time if
requested by the student and appropriate to the situation. For example,
if a student's medically necessary period concludes in the middle of a
college semester, the student and recipient may both find it
advantageous to extend the period of leave until the end of the
semester. However, for a college student in a self-paced independent
study course who takes a voluntary leave of absence because of the
student's pregnancy or related conditions, that student and college may
find it more helpful not to extend the period of leave in light of the
flexibility of the independent study and the possibility that
additional time off could put the student behind in the program. In
addition, proposed Sec. 106.40(b)(3)(iii) would clarify that to the
extent a recipient maintains a leave policy for students that allows a
greater period of time than the medically necessary period, the
recipient must permit the student to take leave under that policy
instead if the student chooses. As explained in greater detail in the
Background discussion of the History of Title IX's Nondiscrimination
Mandate and Related Regulations, a student's right to take leave for
pregnancy or related conditions, regardless of whether the recipient
offers leave to students generally for other types of purposes, has
been included in the Title IX regulations since 1975 and is designed to
help achieve Title IX's underlying objective of eliminating sex-based
discrimination and barriers to equal access to education programs or
activities.
The Department also proposes revising this requirement to state
that the period of medical necessity may be determined either by a
physician (as in the current regulations) or another licensed
healthcare provider. This change would provide additional flexibility
to students and recipients, and would take into account that some
students may be under the care of a midwife, nurse practitioner, or
other licensed healthcare provider who is not a physician.
The Department proposes revisions to clarify that a student must be
reinstated to the same ``academic and, as practicable,
extracurricular'' status upon return. OCR has long interpreted ``same
status upon return'' under current Sec. 106.40(b)(5) as referring to
``academic and extracurricular'' status. See, e.g., U.S. Dep't of
Educ., Office for Civil Rights, Teenage Pregnancy and Parenthood Issues
under Title IX of the Education Amendments of 1972 at 6 (July 1991),
https://files.eric.ed.gov/fulltext/ED345152.pdf; U.S. Dep't of Educ.,
Office for Civil Rights, Supporting the Academic Success of Pregnant
and Parenting Students Under Title IX of the Education Amendments of
1972 at 5 (June 2013) (2013 Pregnancy Pamphlet), https://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf. This proposed revision would
make clear that upon return to school, a student must be restored to
the student's previous academic status, as well as to, as much as
practicable, any extracurricular status the student may have held prior
to the student's leave. The Department acknowledges that in OCR's
previous guidance on pregnancy, OCR stated that a pregnant student who
takes a voluntary leave of absence must be reinstated to the
extracurricular status that the student held when the leave began. The
Department recognizes, however, that in some instances, an
extracurricular activity, event, or program will have ended by the time
a student returns from leave or the student may not, due to timing or
other logistical reasons, be able to participate. For example, if a
particular school play in which a student was cast has ended its
performance run before the student's return, it will not be practicable
to reinstate a student in that role and play. Likewise, if a student's
pregnancy leave resulted in the student's absence during a qualifying
event for an individual diving competition, it would not be practicable
for the student to participate in that competition. These
considerations would not, however, prevent the student in either
situation from participating in plays with the drama club or
competitions with the diving team in the future. Therefore, although
the presumption is that a student returning from leave should be
reinstated to the same extracurricular status, it is the Department's
current view that there may be some limited instances when exact
reinstatement would not be administratively possible or practicable
under the circumstances.
Lactation space. As explained in the discussion in Need for
Clarification Regarding Protections Because of Pregnancy and Parental
Status (III.B)
[[Page 41522]]
and the explanation of the proposed definition of the term ``pregnancy
or related conditions'' (Sec. 106.2), the Department proposes
explicitly recognizing lactation as a basis for protection from
discrimination. The Department currently believes that without
appropriate modifications to ensure that schools prevent and end sex
discrimination, a student who is lactating may face significant
barriers to participating in and benefiting from a recipient's
education program or activity because of a recipient's lack of
awareness about the significant adverse health consequences that can
result from delays in lactation. This lack of awareness can easily lead
to adverse educational consequences as well, causing a student to miss
or drop out of school and lose access to a recipient's education
program or activity due to their lactation needs.
A student who is lactating would typically need breaks every few
hours of the school day to express breast milk or breastfeed and an
appropriate, sanitary space in which to do so. Many school settings
lack appropriate spaces for a student to engage in these activities
with adequate privacy and cleanliness. Secondary school students may
require such spaces if their daily schedules allow limited flexibility
and would not ordinarily allow for leaving school grounds two to three
times each day to express milk or breastfeed. Consequently, lactation
space on school grounds is necessary to enable students who are
lactating to access their classes and extracurricular activities.
Likewise, although postsecondary students often have more flexible
class schedules than secondary school students, these students also
need lactation space on campus so that they can have equal access to
their courses and other campus activities. For students who do not have
housing on or near campus, this need is heightened. Lack of access to
lactation space in any of these scenarios could cause the student to
miss school, quit school, or be unable to express breast milk or breast
feed and, as a result, experience potentially painful physical side
effects that prevents the student from fully accessing and obtaining
the benefits of the recipient's education program or activity.
Proposed Sec. 106.40(b)(3)(iv) would set out the requirements for
a recipient's lactation space, specifically that the recipient provide
a place, other than a bathroom, that is clean, shielded from view, free
from intrusion from others, and may be used by a student for expressing
breast milk or breastfeeding. The Department anticipates that these
requirements will provide the minimum acceptable standards for privacy,
sanitation, and functionality necessary for students to attend to their
lactation needs at school, be free from discrimination, and maintain
equal access to the school's education program or and activity. The
Department expects that a bathroom would not be appropriate because in
most cases, the only option for the student would be to sit on a toilet
while expressing breast milk, which would not be sanitary or acceptable
for the purpose of producing nutrition for a child. Likewise, privacy
is critical to ensure that lactating students do not have to expose
themselves to classmates or strangers.
Nearly all recipients under Title IX are already required to
provide a virtually identical physical space to certain employees under
the FLSA. 29 U.S.C. 207(r)(1). The only additional component added
under the Department's proposed regulations would be that the space be
``clean.'' Because most recipients already maintain janitorial
services, the Department anticipates that the additional burden of
cleaning a lactation space would not be significant.
Proposed Sec. 106.40(b)(3)(iv) would set minimum standards for a
recipient's student lactation space. The proposed regulations would not
prohibit a recipient from using an employee lactation space for
students as well, provided the space meets the requirements of proposed
Sec. 106.40(b)(3)(iv). Likewise, there would be no prohibition on a
recipient from offering additional features in their lactation spaces
to increase functionality and comfort. With respect to the location of
the lactation space, if necessary to address individualized concerns
about distance from the student's class or activity, the recipient may
provide an alternative space or solution consistent with the student's
needs as a reasonable modification to prevent discrimination and ensure
equal access based on pregnancy or related conditions under proposed
Sec. 106.40(b)(3)(ii) and (4).
Finally, nothing in the Department's proposed regulations would
preempt a State or local law that provides greater protections to
students, as explained in the discussion of proposed Sec. 106.6(b).
This would ensure that if a State or local law goes further than the
Department's proposed regulations, for example by requiring more
features in the lactation space (such as refrigeration, an outlet, a
table, etc.), the Department's proposed regulations would not interfere
with those enhanced requirements.
Section 106.40(b)(4) Pregnancy or Related Conditions--Reasonable
Modifications for Students Because of Pregnancy or Related Conditions
Current regulations: Section 106.40(b)(1) prohibits discrimination
on the basis of ``pregnancy, childbirth, false pregnancy, termination
of pregnancy or recovery therefrom'' and current Sec. 106.40(b)(4),
which requires a recipient to treat ``pregnancy, childbirth, false
pregnancy, termination of pregnancy and recovery'' in the ``same manner
and under the same policies as any other temporary disability with
respect to any medical or hospital benefit, service, plan, or policy
which such recipient administers, operates, offers, or participates in
with respect to students admitted to the recipient's educational
program or activity.''
Proposed regulations: The Department proposes adding Sec.
106.40(b)(4), which includes protections from current Sec.
106.40(b)(1) and (4). Proposed Sec. 106.40(b)(4) would explain that,
for purposes of this section, reasonable modifications to a recipient's
policies, practices, or procedures for a student who is pregnant or is
experiencing pregnancy-related conditions:
(i) Must be provided on an individualized and voluntary basis
depending on the student's needs resulting from pregnancy or related
conditions when necessary to prevent discrimination and ensure equal
access to the recipient's education program or activity, unless the
recipient can demonstrate that making the modification would
fundamentally alter the recipient's education program or activity, when
a ``fundamental alteration'' would be a change that is so significant
that it alters the essential nature of the recipient's education
program or activity;
(ii) Must be effectively implemented, coordinated, and documented
by the Title IX Coordinator; and
(iii) May include but are not limited to, breaks during class to
attend to related health needs, breastfeeding, or expressing breast
milk; intermittent absences to attend medical appointments; access to
online or other homebound education; changes in schedule or course
sequence; extension of time for coursework and rescheduling of tests
and examinations; counseling; changes in physical space or supplies
(for example, access to a larger desk or a footrest); elevator access;
or other appropriate changes to policies, practices, or procedures.
Reasons: Reasonable modification for pregnancy or related
conditions
[[Page 41523]]
standard. The Department proposes adding Sec. 106.40(b)(4) to require
a recipient to offer a student reasonable modifications to its
policies, practices, and procedures to prevent pregnancy-related
discrimination and to ensure equal access to a student who is pregnant
or experiencing pregnancy-related conditions, unless the recipient can
demonstrate that making the modification would fundamentally alter the
recipient's education program or activity.
As noted in the discussion of the 1975 Title IX Regulations Related
to Pregnancy and Parental Status (Section III.A), the Department's
Title IX regulations require a recipient to take a variety of steps to
ensure equal treatment and access for students who are pregnant or
experiencing pregnancy-related conditions. Current Sec. 106.40(b)(1)
prohibits discrimination based on pregnancy or related conditions.
Current Sec. 106.40(b)(4) requires a recipient to treat pregnancy or
related conditions similarly to other temporary disabilities with
respect to, inter alia, medical or hospital benefits. And current Sec.
106.40(b)(5) requires a recipient to take specific, tailored steps
necessary to support students who are pregnant or experiencing
pregnancy-related conditions to enable them to access its education
program or activity--regardless of whether the recipient takes similar
steps for all students. The Department now believes that the current
regulations may not sufficiently achieve the objectives of Title IX.
For example, some recipients do not maintain policies related to
temporary disabilities of students, leaving their responsibilities to
pregnant students under current Sec. 106.40(b)(4) unclear. Likewise,
the wording of current Sec. 106.40(b)(4) may suggest that a
recipient's responsibility extends only to ``medical or hospital''
benefits, services, plans or policies--for example, student health
insurance plans--rather than requiring day-to-day modifications of the
education program or activity that would be necessary to prevent
discrimination and ensure equal access for pregnant students and
students who are experiencing pregnancy-related conditions in a modern
context.
The Department anticipates that recipients would benefit from
increased clarity as to what proactive steps they must take to prevent
intentional or inadvertent discrimination under Title IX. Measures
designed to eliminate subtle and even unconscious forms of
discrimination are particularly useful to ensure that students who are
pregnant or experiencing pregnancy-related conditions have access to
the recipient's education program or activity. It is the Department's
current view that the proposed regulations provide clear and functional
requirements for recipients to ensure that pregnant students and
students experiencing pregnancy-related conditions are not
discriminated against, and that these requirements are necessary to
protect the rights of these students and help effectuate Title IX's
nondiscrimination goal.
Recognizing the varied language used in different laws,
regulations, and guidance, the Department proposes the reasonable
modifications framework set out in proposed Sec. 106.40(b)(4) as the
appropriate framework to achieve Title IX's nondiscrimination objective
in the educational context. The Department notes that this is similar
to the framework under Title II of the ADA for determining necessary
different treatment to meet the disability-related needs of a qualified
individual with a disability. Specifically, under Title II, a public
entity must reasonably modify its policies, practices, or procedures to
avoid discrimination unless the modifications would fundamentally alter
the nature of its service, program, or activity. 28 CFR 35.130(b)(7).
Although a pregnancy would not be in and of itself a disability under
Title II, the reasonable modification framework of Title II applies to
disabilities related to pregnancy, as well as all other disabilities.
28 CFR part 35, app. C (citing 2015 EEOC Pregnancy Guidance). It is the
Department's current view that this framework would achieve Title IX's
nondiscrimination mandate and account for both student and recipient
needs. For example, it would require a recipient to act when necessary
to prevent sex discrimination but would allow flexibility for the
recipient to choose from among a range of options appropriate to the
student's individualized needs under the circumstances. This approach
would also invite collaboration between the student and the recipient
to determine appropriate reasonable modifications in a situation as the
recipient seeks to determine what is needed. As the recipient prevents
discriminatory barriers in its education program or activity through
the provision of reasonable modifications because of pregnancy or
related conditions, over time, this process would benefit not only the
students who receive reasonable modifications, but also subsequent
students who may be in need of modifications as the recipient becomes
more efficient and effective at providing them. The Department expects
that this framework not only will be most effective in ensuring against
sex discrimination as required by Title IX but also will be familiar to
most schools and thus, would be relatively straightforward to adopt and
implement in order to prevent discrimination and ensure equal access
for students who are pregnant or experiencing related conditions.
Moreover, Title II's treatment of pregnancy-related conditions informs
the Department's understanding of what constitutes discrimination
against students with those conditions.
The fundamental alteration standard would not compromise the
integrity of a recipient's education program or activity. Proposed
Sec. 106.40(b)(4)(i) would clarify that a fundamental alteration is a
change so significant that it alters the essential nature of the
recipient's education program or activity. Determining whether a change
constitutes a fundamental alteration would necessarily be fact-
specific. Proposed Sec. 106.40(b)(4)(i) provides that it would be the
recipient's burden to demonstrate that a proposed modification would
fundamentally alter its education program or activity. To the extent a
recipient determines that a requested modification would require a
fundamental alteration under the proposed regulations, it would have to
provide other modifications that would not result in a fundamental
alteration but would nevertheless ensure that, to the maximum extent
possible, the student who made the request is not discriminated against
and receives equal access to the recipient's education program or
activity. The recipient would also be required to document those
efforts as part of the requirement under proposed Sec.
106.40(b)(4)(ii) that the Title IX Coordinator effectively implement,
coordinate, and document reasonable modifications for students because
of pregnancy and related conditions, and retain such records under
proposed Sec. 106.8(f)(4).
Individualized and voluntary basis. Proposed Sec. 106.40(b)(4)(i)
would require a recipient to consider a student's needs on an
individualized and voluntary basis as situations will vary widely based
on many unique factors such as the age of student, the type of
education program or activity, the student's health, and other
circumstances. Under the proposed regulations, a recipient would be
required to consider all reasonable modifications based on pregnancy or
related conditions necessary to ensure equal access in each student's
case rather than adopt a generalized approach for all students who are
pregnant or experiencing related conditions. The recipient's actions
[[Page 41524]]
under the Department's proposed regulations would be initiated by
notice from the student or the student's family to the Title IX
Coordinator; however, it would not be incumbent on the student or their
family to identify or request a specific possible reasonable
modification. For example, a recipient may engage in an interactive
process with the student and, when appropriate, the student's parent,
guardian, or other authorized legal representative, to discuss the
student's needs and options that would best ensure equal access. The
identification of reasonable modifications would likely be a
collaborative effort between the student and the recipient, but it
would be the recipient's duty to select a reasonable modification,
offer it, and--if accepted by the student on a voluntary basis--
effectively implement it. As noted, the Department's proposed
regulations would ensure that a student would receive a modification
only on a voluntary basis, meaning that a student could not be required
to accept a particular modification. The student would have the right
to choose a reasonable modification or to remain in their program under
the status quo.
Role of Title IX Coordinator. Proposed Sec. 106.40(b)(4)(ii) would
require that the Title IX Coordinator effectively implement,
coordinate, and document reasonable modifications provided to students
because of individual needs related to pregnancy or related conditions.
The steps involved with implementation and coordination would vary
depending on the circumstances but would generally include determining
what modifications are appropriate with input from the student and any
other necessary individuals, communicating approved modifications to
the student and any relevant staff members, ensuring that all other
staff members involved in carrying out the modifications were
performing their roles, and documenting when and how modifications took
place. For example, if a student were entitled to breaks from class for
lactation, the Title IX Coordinator may need to take actions such as
ensuring that the student's instructors were aware of their obligation
to allow breaks, that the instructors met that obligation, that there
was a plan for enabling the student to make up any time missed, and
that the student knew how to report if there were any problem with
implementation. The Title IX Coordinator would be required to document
any modifications because of pregnancy or related conditions provided
under proposed Sec. 106.40(b)(4)(ii) and maintain such records under
proposed Sec. 106.8(f)(4).
Types of modifications. Proposed Sec. 106.40(b)(4)(iii) would
explain that reasonable modifications for a student based on pregnancy
or related conditions may include a wide array of supports. The
Department notes that a student's options for reasonable modifications
because of pregnancy or related conditions are in no way affected by
reasonable modifications for students with disabilities (or vice
versa). In addition, a student's options for reasonable modifications
because of pregnancy or related conditions would not be limited by the
fact that the recipient has never had occasion to provide a particular
modification to any student in the past.
For example, if a student were to request intermittent absences to
attend morning prenatal medical appointments and the opportunity to
make up lost class time without penalty within a reasonable amount of
time, that could be an appropriate reasonable modification for a
pregnant student even if the recipient had not provided similar breaks
to any other student (for example, because none had requested or needed
them), as long as this arrangement was appropriate to the pregnant
student's individualized need and did not require a fundamental
alteration of the recipient's education program or activity. Likewise,
if the recipient felt it could prevent discrimination through some
alternative modification, such as offering the student the opportunity
to switch to a comparable course that met in the afternoon, that could
be reasonable as well.
Alternatively, depending on the facts and circumstances, if a
student requested that her school waive her entire senior year and
allow her to graduate without those credits as a reasonable
modification because of pregnancy, this would likely present a
fundamental alteration of the recipient's program under this section.
In this case, the recipient would be obligated to offer alternative
modifications sufficient to prevent sex discrimination, such as
allowing the student to complete her required number of credits at a
slower pace or granting her extensions of time to complete certain
tests or assignments. The proposed regulations would include several
additional examples of potential reasonable modifications because of
pregnancy or related conditions to inform both students and recipients
of their broad range of options.
Section 106.40(b)(5) Pregnancy or Related Conditions--Comparable
Treatment to Temporary Disabilities or Conditions
Current regulations: Section 106.40(b)(4) requires a recipient to
treat ``pregnancy, childbirth, false pregnancy, termination of
pregnancy and recovery'' in the ``same manner and under the same
policies as any other temporary disability with respect to any medical
or hospital benefit, service, plan or policy which such recipient
administers, operates, offers, or participates in with respect to
students admitted to the recipient's educational program or activity.''
Proposed regulations: Proposed Sec. 106.40(b)(5) would add a
heading to the section, would replace ``pregnancy, childbirth, false
pregnancy, termination of pregnancy and recovery'' with ``pregnancy or
related conditions or any temporary disability resulting therefrom,''
and would add a limitation to make clear that this provision would
apply only when the issue is not otherwise addressed under proposed
Sec. 106.40(b)(3).
Reasons: The Department proposes minor edits to increase
readability and align this section with the definition of ``pregnancy
or related conditions'' in proposed Sec. 106.2. In light of the
proposed addition of a new provision on reasonable modifications
because of pregnancy or related conditions, leave, and lactation space
at proposed Sec. 106.40(b)(3), the Department proposes clarifying that
proposed Sec. 106.40(b)(5) would apply only to issues not already
resolved under the process set out in proposed Sec. 106.40(b)(3). The
Department anticipates that this clarification would dispel confusion
for recipients and students, but at the same time retain the protection
of current Sec. 106.40(b)(4). In addition, the inclusion of
``temporary disability therefrom'' would align this provision with
proposed Sec. Sec. 106.21(c)(1) and 106.57(c), creating consistency
and comprehensibility for recipients, students, and employees.
Section 106.40(b)(6) Pregnancy or Related Conditions--Certification To
Participate
Current regulations: Section 106.40(b)(2) allows a recipient to
require a student, based on pregnancy, childbirth, false pregnancy,
termination of pregnancy or recovery therefrom, to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation so long as such a
certification is required of all students
[[Page 41525]]
for other physical or emotional conditions requiring the attention of a
physician.
Proposed regulations: The Department proposes Sec. 106.40(b)(6) to
clarify that a recipient may not require a student who is pregnant or
experiencing pregnancy-related conditions to provide certification from
a physician or other licensed healthcare provider that the student is
physically able to participate in the recipient's class, program, or
extracurricular activity unless: (i) the certified level of physical
ability or health is necessary for participation in the class, program,
or extracurricular activity; (ii) the recipient requires such
certification of all students participating in the class, program, or
extracurricular activity; and (iii) the information obtained is not
used as a basis for discrimination prohibited by the regulations. It
would also remove ``emotionally.''
Reasons: Under the current regulations, a recipient can require a
student who is pregnant or experiencing pregnancy-related conditions to
obtain certification of physical and emotional ability to participate
if it requires students with other physical or emotional conditions to
obtain the same certification. Although the Department acknowledges
that there may be reasons that this certification could be necessary in
narrow circumstances, the Department now believes that current Sec.
106.40(b)(2)--a provision that exists solely to guide recipients on how
and on what basis to exclude students who are pregnant or have
pregnancy-related conditions--is too broad and permissive as written.
For example, under the current regulations, it would be difficult,
or even impossible, for a student who is pregnant or experiencing
pregnancy-related conditions to know whether an ability-certification
requirement was being applied to the student appropriately because that
student would not necessarily know whether or which other students had
been asked for the same certification, especially in light of the
privacy protections applicable to the health conditions of other
students. The current regulations also may lead to different treatment
of pregnant students from students who are not pregnant and do not have
pregnancy-related conditions because they allow recipients to single
out pregnant students, and students with ``physical and emotional
conditions,'' for ability-certification requirements. In addition, the
current regulations lack any requirement that the certified level of
physical ability or health be necessary to the activity for which a
recipient seeks medical certification prior to permitting participation
by a student who is pregnant or experiencing pregnancy-related
conditions.
To address these concerns and to prevent and minimize the
possibility of sex-based discrimination, the Department proposes
clarifying that a recipient may not require a student who is pregnant
or experiencing pregnancy-related conditions to provide a certification
of physical ability or health unless (i) a certain level of physical
ability or health is necessary for participation in a specific class,
program, or extracurricular activity; (ii) it requires such
certification of all students in the same class, program, or
extracurricular activity; and (iii) the information obtained is not
used as a basis for sex discrimination. The Department proposes
allowing certification from licensed healthcare providers in addition
to physicians to allow greater flexibility and decrease burden to
students being treated by these providers. Finally, the Department also
proposes deleting ``emotionally'' from current Sec. 106.40(b)(2), as
it is unnecessary and suggests a stereotypical assumption regarding the
mental health of students who are pregnant or recovering from
childbirth. With these changes, the Department aims to ensure that
pregnant students and students who are experiencing pregnancy-related
conditions would not face different burdens than other students
regarding certification to participate in the recipient's education
program or activity.
In proposing these revisions, the Department notes several points.
First, nothing in proposed Sec. 106.40(b)(6) would bear in any way on
the rights of a student experiencing, for example, postpartum
depression. That student would be protected from discrimination based
on pregnancy or related conditions under proposed Sec. 106.40(b)(1),
particularly considering the clarified definition of ``pregnancy or
related conditions'' at proposed Sec. 106.2, which would extend to
medical conditions related to pregnancy. The recipient would also be
required to provide the student reasonable modifications, leave, and
the other steps set out in proposed Sec. 106.40(b)(3). Likewise,
nothing in proposed Sec. 106.40(b)(6) would limit a student's rights
or a recipient's obligations under Section 504, which prohibits
discrimination on the basis of disability, whether physical or mental
in nature. Depending on the nature of the impairment, the student would
also likely qualify for protection as a person with a disability under
Section 504. To the extent a recipient has a specific concern about the
mental health of a student who is pregnant or experiencing pregnancy-
related conditions, the proposed provision would not preclude the
recipient from making an inquiry, provided that such inquiry did not
subject the student to discrimination on the basis of sex or
disability.
Second, proposed Sec. 106.40(b)(6) would pertain only to limited
situations in which physical ability or health is necessary for a
specific class, program, or extracurricular activity. Examples when
this situation might arise include school sports, a vocational course
(e.g., firefighting) that includes physical-ability requirements to
perform specific tasks, or a class that will expose students to
hazardous chemicals. Outside of these limited situations, the
Department does not anticipate that most recipients would have any
reason to request a certification of physical ability or health prior
to allowing any students to participate in most classes, programs, or
extracurricular activities.
Third, a recipient may not forbid participation as a general matter
by students who are pregnant or experiencing pregnancy-related
conditions. For example, if a high school requires certification of
physical ability or health from all students who wish to join its track
team, it may require that certification from a pregnant student. The
school may not, however, require that a student certify prior to
participation that the student is not pregnant or require only pregnant
students to provide a certification of physical ability or health.
Likewise, a recipient would be prohibited under proposed Sec.
106.40(b)(6)(iii) from using any information obtained through its
request for certification of physical ability or health to discriminate
based on sex.
Fourth, a recipient's default assumption should be that a student
who is pregnant or experiencing pregnancy-related conditions may
participate, unless there is a specific, documented medical reason tied
to the physical ability or health requirements of the class, program,
or extracurricular activity that cannot be overcome with reasonable
modifications for a student who is pregnant or experiencing pregnancy-
related conditions under proposed Sec. 106.40(b)(4). If reasonable
modifications because of a student's pregnancy or related conditions
would prevent discrimination by ensuring participation, the recipient
must provide these modifications and allow participation.
Finally, this provision would not be intended to address how or
when a
[[Page 41526]]
recipient may request that a student provide medical documentation to
support the need for certain reasonable modifications because of
pregnancy or related conditions under proposed Sec. 106.40(b)(4) or to
determine a minimum amount of leave to which a student would be
entitled under proposed Sec. 106.40(b)(3)(iii). Although the
Department anticipates that such documentation will be unnecessary in
most cases, it could be appropriate in limited situations depending on
the circumstances of a student's needs, the education program or
activity, and the modification at issue.
G. Discrimination Based on an Employee's Parental, Family, Marital
Status, Pregnancy, or Related Conditions
Section 106.51(b)(6) Employment
Current regulations: Section 106.51 describes certain prohibitions
on sex discrimination in a recipient's employment actions.
Specifically, current Sec. 106.51(b)(6) states that the subpart
applies to ``[g]ranting and return from leaves of absence, leave for
pregnancy, childbirth, false pregnancy, termination of pregnancy, leave
for persons of either sex to care for children or dependents, or any
other leave.''
Proposed regulations: The Department proposes replacing
``pregnancy, childbirth, false pregnancy, termination of pregnancy''
with ``pregnancy or related conditions.''
Reasons: As explained in greater detail in the Department's
discussion of the proposed definition of ``pregnancy or related
conditions'' (Sec. 106.2), the Department's tentative view is that
using this term will add clarity and consistency regarding which
individuals each provision covers.
Section 106.57 Parental, Family, or Marital Status; Pregnancy or
Related Conditions
Current regulations: The section heading is ``Marital or parental
status.''
Proposed regulations: The Department proposes changing this section
heading to ``Parental, family, or marital status; pregnancy or related
conditions.''
Reasons: The proposed section heading would more accurately
describe the content of the section.
Section 106.57(a)(1) General
Current regulations: Section 106.57(a)(1) states that a recipient
shall not apply any policy or take any employment action ``[c]oncerning
the potential marital, parental, or family status of an employee or
applicant for employment which treats persons differently on the basis
of sex.''
Proposed regulations: The Department proposes the following edits
to current Sec. 106.57(a) and (a)(1):
Changing the heading of Sec. 106.57(a) from ``General''
to ``Status generally'';
Changing ``apply'' to ``adopt or apply'' in proposed Sec.
106.57(a); and
Changing ``potential'' to ``current, potential, or past''
in proposed Sec. 106.57(a)(1).
Reasons: The Department proposes these three changes for the
reasons set out in the discussion of proposed Sec. 106.40(a), which
applies a similar prohibition on discrimination to students. The
Department's tentative view is also that using the same terms
throughout the regulations would better enable recipients, students,
and employees to understand and apply them. Specifically, with respect
to the change from ``apply'' to ``adopt or apply,'' the Department's
tentative view is that a recipient should be prohibited from adopting
discriminatory policies based on pregnancy or related conditions.
Adding ``adopt'' is intended to enable persons to understand that they
may challenge a rule as being discriminatory even before it has been
applied and caused harm. For example, if a recipient adopted a rule
that it would not hire pregnant individuals, this rule would raise
compliance concerns even if the recipient had not yet applied it to
exclude an individual applicant. Likewise, the Department's tentative
view is that clarifying that Title IX's coverage includes current and
past parental, family, or marital status would more fully implement
Title IX's guarantee against sex discrimination. For example, the
proposed regulations would address a situation in which a recipient
disciplined employees who are mothers for excessive absences more
harshly than employees who are fathers because the recipient assumed
that the mothers were less committed employees due to family
obligations.
Section 106.57(b) Pregnancy or Related Conditions
Current regulations: Section 106.57(b) states that a recipient
shall not discriminate against or exclude from employment any employee
or applicant for employment on the basis of pregnancy, childbirth,
false pregnancy, termination of pregnancy, or recovery therefrom.
Proposed regulations: The Department proposes the following edits
to current Sec. 106.57(b):
Changing the heading of Sec. 106.57(b) from ``Pregnancy''
to ``Pregnancy or related conditions''; and
Replacing ``pregnancy, childbirth, false pregnancy,
termination of pregnancy, or recovery therefrom'' with ``current,
potential, or past pregnancy or related conditions.''
Reasons: The Department proposes these two changes for the reasons
set out in the discussion of proposed Sec. 106.40(b), which would
apply a similar prohibition on discrimination to students. The
Department's tentative view is also that using the same terms
throughout the regulations will better enable recipients and those
covered to understand and apply them. In this section, adding
``lactation'' and ``related medical conditions'' to the bases already
explicitly covered would be consistent with Title IX's goal of
preventing discrimination and eliminating barriers to equal access
based on sex. For the reasons explained in the discussion of the
proposed definition of the term ``pregnancy or related conditions''
(Sec. 106.2), this change would address more types of sex
discrimination in employment in the educational context. For example,
this proposed formulation would make clear that a recipient could not
take an adverse employment action against an employee because the
employee needed to miss work to receive treatment for mastitis, a
medical condition related to lactation. It would also clarify that a
recipient could not discriminate based on current, potential, and past
pregnancy or related conditions. Proposed Sec. 106.57(b) would also
prohibit a recipient from terminating an employee for a past
complication due to pregnancy, for example, out of concern that if the
employee became pregnant again, the employee would require a long leave
time to recover. See 2015 EEOC Pregnancy Guidance (``[I]f an employee
was discharged during her pregnancy-related medical leave (i.e., leave
provided for pregnancy or recovery from pregnancy) or her parental
leave (i.e., leave provided to bond with and/or care for a newborn or
adopted child), and if the employer's explanation for the discharge is
not believable, a violation of Title VII may be found.'')
Section 106.57(c) Comparable Treatment to Temporary Disabilities or
Conditions
Current regulations: Section 106.57(c) states that a recipient
shall treat pregnancy, childbirth, false pregnancy, termination of
pregnancy, and recovery therefrom and any temporary disability
resulting therefrom as any other temporary disability for all job-
related purposes, including commencement, duration and extensions of
leave, payment of disability income, accrual of
[[Page 41527]]
seniority and any other benefit or service, and reinstatement, and
under any fringe benefit offered to employees by virtue of employment.
Proposed regulations: The Department proposes the following
revisions to current Sec. 106.57(c):
Changing the heading from ``Pregnancy as temporary
disability'' to ``Comparable treatment to temporary disabilities or
conditions''; and
Replacing ``pregnancy, childbirth, false pregnancy,
termination of pregnancy, or recovery therefrom and'' with ``pregnancy
or related conditions or.''
Reasons: The Department proposes these two changes for the reasons
set out in the discussion of proposed Sec. 106.40(b)(5), which applies
to students. The Department's current view is also that using the same
terms throughout the regulations will better enable recipients and
those covered to understand and apply them. Adding ``lactation'' and
``related medical conditions'' to the bases already explicitly covered
in current Sec. 106.57(c) would be consistent with Title IX's goal of
preventing discrimination and eliminating barriers to equal access
based on sex. For the reasons explained in the discussion of the
proposed definition of the term ``pregnancy or related conditions''
(Sec. 106.2), this change will address a more comprehensive range of
circumstances that could be the subject of sex discrimination in
employment in the educational context. For example, under the proposed
regulations, if a recipient provided paid leave time under a temporary
disability policy for an employee to receive physical therapy to
recovery from a broken leg, it would have to allow comparable paid time
for an employee who needed to attend physical therapy to address a
pelvic injury due to childbirth.
Section 106.57(d) Pregnancy Leave
Current regulations: Section 106.57(d) states that in the case of a
recipient which does not maintain a leave policy for its employees, or
in the case of an employee with insufficient leave or accrued
employment time to qualify for leave under such a policy, a recipient
shall treat pregnancy, childbirth, false pregnancy, termination of
pregnancy, and recovery therefrom as a justification for a leave of
absence without pay for a reasonable period of time, at the conclusion
of which the employee shall be reinstated to the status which she held
when the leave began or to a comparable position, without decrease in
rate of compensation or loss of promotional opportunities, or any other
right or privilege of employment.
Proposed regulations: The Department proposes the following edits
to current Sec. 106.57(d):
Replacing ``pregnancy, childbirth, false pregnancy,
termination of pregnancy, or recovery therefrom'' with ``pregnancy or
related conditions'';
Revising ``leave of absence'' to ``voluntary leave of
absence''; and
Replacing ``the status which she held'' with ``the status
held.''
Reasons: The Department proposes these three changes for the
reasons set out in the discussion of proposed Sec. 106.40(b)(3)(iii),
which applies to students. The Department's tentative view is also that
using the same terms throughout the regulations would better enable
recipients, students, and employees to understand and apply them.
Adding ``lactation'' and ``related medical conditions'' to the bases
already explicitly covered is consistent with Title IX's goal of
preventing discrimination and eliminating barriers to equal access
based on sex. For the reasons explained in the discussion of the
proposed definition of the term ``pregnancy or related conditions''
(Sec. 106.2), this change would address a more comprehensive range of
circumstances that could be the subject of sex discrimination in
employment in the educational context. The Department proposes adding
``voluntary'' to clarify that an employee must not be forced to take
leave due to pregnancy or related conditions, but rather must have the
right to choose whether to take leave. Finally, the Department proposes
clarifying the text of the provision for readability to replace ``the
status which she held'' with ``the status held.''
Section 106.57(e) Lactation Time and Space
Current regulations: None.
Proposed regulations: The Department proposes adding requirements
in proposed Sec. 106.57(e) that a recipient must: (1) provide
reasonable break time for an employee to express breast milk or
breastfeed as needed; and (2) ensure the availability of a lactation
space, which must be a space other than a bathroom that is clean,
shielded from view, free from intrusion from others, and may be used by
an employee for expressing breast milk or breastfeeding as needed.
Reasons: Overview. Ensuring equal access to employment in the
education sector regardless of sex was a central purpose of Title IX at
the time of its passage. See 118 Cong. Rec. at 5810 (statement of Dr.
Bernice Sandler explaining that employers in the education sector often
refused to hire women because of concerns about absenteeism due to
family obligations, despite the fact that the Women's Bureau of the
Department of Labor found that ``men lose more time off the job because
of hernias than do women because of childbirth and pregnancy''). OCR
and the Department received feedback from stakeholders during the June
2021 Title IX Public Hearing and in meetings held in 2022 under
Executive Order 12866, after the NPRM was submitted to OMB, that civil
rights protections based on pregnancy or related conditions are
critical in the educational context. The Department now believes that
clearly defined rights to lactation time and space are essential to
prevent different treatment on the basis of sex and exclusion from
recipient workplaces.
For employees in the education sector, lactation needs may present
different challenges depending on the nature of the employment.
Employees, particularly in elementary schools and secondary schools,
may lack an appropriate place to express breast milk and instead resort
to expressing milk in an unsanitary environment, such as a restroom
stall, a supply closet, or even a car. If appropriate space is not
provided, these employees may have little choice but to attend to their
lactation needs in a space that is open and, in doing so, risk exposing
themselves to colleagues and students. Or these employees may be denied
the reasonable break time necessary to express milk, leading to painful
health complications. If an employee is unable to access appropriate
time and space for lactation, the employee may have no choice but to
leave their employment in order to continue to care for their child's
nutritional needs in the way the employee thinks best. To prevent
subtle forms of sex discrimination and ensure equal access regardless
of sex, the Department would require that a recipient: (1) provide
reasonable break time for an employee to express breast milk or
breastfeed as needed; and (2) ensure the availability of a lactation
space, which must be a space other than a bathroom that is clean,
shielded from view, free from intrusion from others, and may be used by
an employee for expressing breast milk or breastfeeding as needed.
Overall, it is the Department's current view that requiring a
recipient to provide its employees with reasonable break time and space
for lactation would prevent discrimination and address sex-based
barriers to equal access in employment by allowing
[[Page 41528]]
employees to attend to lactation needs while at work. Absent this rule,
and depending on the circumstances, an employee could face discipline
or job loss for absenteeism if the employee needed reasonable break
time or space to express breast milk. An employee could also face
harassment or retaliation because the current regulations do not
clearly address lactation, including lactation time and space. Proposed
Sec. 106.57(e) would clearly set out a recipient's obligation, so both
recipients and employees would have clear information about their
obligations and rights consistent with Title IX.
Reasonable break time. Reasonable break time is necessary to ensure
that a lactating employee can successfully access their school-based
employment. As noted by the EEOC, ``a nursing mother will typically
need to breastfeed or express breast milk using a pump two or three
times over the duration of an eight-hour workday.'' 2015 EEOC Pregnancy
Guidance. Because the physical needs and employment scenarios may vary
by individual, proposed Sec. 106.57(e)(1) would provide flexibility
for a recipient to adapt to a range of situations. The time must be
sufficient for the employee--every few hours--to travel to the
lactation space, express breast milk or breastfeed, wash their
lactation supplies if any, store the milk, and return to the work area.
Lactation space. Proposed Sec. 106.57(e)(2) would also require a
recipient to ensure the availability of a lactation space, which must
be a space other than a bathroom that is clean, shielded from view,
free from intrusion from others, and may be used by an employee for
expressing breast milk or breastfeeding as needed. This requirement
would be like the lactation space that the Department would require a
recipient to provide to a student under proposed Sec.
106.40(b)(3)(iv). As explained in greater detail in the discussion of
proposed Sec. 106.40(b)(3)(iv), the Department expects that these are
also the appropriate minimum standards to prevent discrimination and
create equal access for lactating employees. Specifically, these
standards would allow an employee to express breast milk in a private,
clean, and appropriate location as needed. Because the standards for
both students and employee spaces would be the same, a recipient could
choose to offer a common space for both students and employees, thereby
minimizing cost while ensuring civil rights compliance.
The Department further notes that nothing in proposed Sec.
106.57(e)(1) or (2) would preempt State or local laws that do not
conflict with Title IX and may afford greater protection to employees
regarding lactation time and space, as explained in greater detail in
the discussion of proposed Sec. 106.6(b).
Section 106.60 Pre-Employment Inquiries
Current regulations: Section 106.60 prohibits pre-employment
inquiries regarding marital status and limits permissible inquiries as
to sex.
Proposed regulations: The Department proposes revisions to make
this section consistent with related provisions at proposed Sec.
106.21(c) regarding pre-admission inquiries and to enhance readability.
Specifically, the Department proposes to replace ``[a] recipient may
make pre-employment inquiry as to the sex of an applicant for
employment, but only if such inquiry is made equally of such applicants
of both sexes and if the results of such inquiry are not used in
connection with discrimination prohibited by this part'' with ``[a]
recipient may ask an applicant for employment to self-identify their
sex, but only if this question is asked of all applicants and if the
response is not used as a basis for discrimination prohibited by this
part'' in proposed Sec. 106.60(b).
Reasons: As explained in the discussion of proposed Sec.
106.21(c), the Department proposes replacing the term ``in connection
with discrimination'' with ``as a basis for discrimination'' to enhance
clarity and consistency with usage elsewhere in the proposed
regulations but does not intend this as a substantive change in
meaning. In addition, the Department proposes revising Sec. 106.60(b)
to refer to ``all applicants'' instead of to ``both sexes'' in
recognition of the fact that some applicants may have a nonbinary
gender identity. For the same reason, if a recipient asks applicants to
self-identify their sex and provides options from which an applicant
may choose, nothing in the current or proposed regulations would
prohibit a recipient from offering nonbinary options in addition to
male and female options.
IV. Title IX's Coverage of All Forms of Sex Discrimination
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). Title IX includes several statutory exemptions and
exceptions from its coverage, including for the membership practices of
certain organizations, admissions to private undergraduate colleges,
educational institutions that train individuals for the military
services or merchant marine, and educational institutions that are
controlled by a religious organization to the extent that application
of Title IX would be inconsistent with the religious tenets of the
controlling organization. 20 U.S.C. 1681(a)(1)-(9). Title IX also
includes a provision concerning the discrete context of ``living
facilities for the different sexes.'' 20 U.S.C. 1686. The Department
has the authority to regulate with regard to discrimination on the
basis of sex in education programs or activities receiving Federal
financial assistance, specifically under 20 U.S.C. 1682 and generally
under 20 U.S.C. 1221e-3 and 3474.
The statute does not explicitly reference distinct forms of sex
discrimination, such as discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
or gender identity, or discrimination taking the form of sex-based
harassment. Although it does not address these specific applications,
the Supreme Court made clear in 1982 that ``if we are to give Title IX
the scope that its origins dictate, we must accord it a sweep as broad
as its language.'' N. Haven Bd. of Educ., 456 U.S. at 521.
A. History of the Department's Interpretation of Title IX's Coverage
The Department's Title IX regulations have long included provisions
explaining Title IX's coverage of discrimination based on pregnancy or
related conditions and sex stereotypes. See, e.g., 34 CFR 106.21(c)(2)
and (3), 106.40(b), 106.51(b)(6), 106.57(b) through (d), 106.61. In
2006 and 2020, the Department amended the regulations to address
additional specific applications of Title IX's coverage of
discrimination based on sex stereotypes. See 34 CFR 106.34(b)(4)(i),
106.45(b)(1)(iii). Although the Department has not previously used its
rulemaking authority to clarify Title IX's specific application to
discrimination based on sex characteristics, sexual orientation, or
gender identity, OCR has previously addressed these applications of
Title IX through guidance and administrative enforcement.
OCR first issued guidance on Title IX's application to sexual
orientation discrimination and the rights of gay and lesbian students
in its 1997 Sexual Harassment Guidance, which stated: ``Although Title
IX does not prohibit discrimination on the basis of sexual orientation,
sexual harassment directed at gay or lesbian students may constitute
[[Page 41529]]
sexual harassment prohibited by Title IX.'' 62 FR 12039 (footnote
omitted). In 2001, OCR revised and reissued this guidance after the
Supreme Court issued decisions in Gebser and Davis, two cases that
addressed sexual harassment in educational settings, and Oncale, a case
involving same-sex sexual harassment in the workplace. 2001 Revised
Sexual Harassment Guidance at i-ii. This revised guidance added a few
clarifications, including that ``sufficiently serious sexual harassment
is covered by Title IX even if the hostile environment also includes
taunts based on sexual orientation,'' id. at 27 n.15, that ``it can be
discrimination on the basis of sex to harass a student on the basis of
the victim's failure to conform to stereotyped notions of masculinity
and femininity,'' id. at v, and that ``Title IX prohibits sexual
harassment regardless of the sex of the harasser, i.e., even if the
harasser and the person being harassed are members of the same sex,''
id. at 3. The 1997 Sexual Harassment Guidance and 2001 Revised Sexual
Harassment Guidance thus addressed some specific forms of sex
discrimination against gay, lesbian, and gender-nonconforming students.
They did not specifically address other forms of sex discrimination,
such as discrimination based on gender identity. In October 2010, OCR
issued a Dear Colleague Letter on Harassment and Bullying, which
discussed Title IX's application to LGBT students:
Although Title IX does not prohibit discrimination based solely
on sexual orientation, Title IX does protect all students, including
lesbian, gay, bisexual, and transgender (LGBT) students, from sex
discrimination. When students are subjected to harassment on the
basis of their LGBT status, they may also . . . be subjected to
forms of sex discrimination prohibited under Title IX. The fact that
the harassment includes anti[hyphen]LGBT comments or is partly based
on the target's actual or perceived sexual orientation does not
relieve a school of its obligation under Title IX to investigate and
remedy overlapping sexual harassment or gender[hyphen]based
harassment.
2010 Dear Colleague Letter on Harassment and Bullying at 8
In July 2013, the Federal government resolved its first
administrative enforcement case finding compliance concerns under Title
IX regarding a school's denial of a transgender student's access to
sex-separate facilities and accommodations during an overnight school
trip. In their resolution letter, OCR and the Civil Rights Division of
the U.S. Department of Justice (DOJ) emphasized the district's failure
to contemplate any reasonable alternative arrangements that would have
been less burdensome on the student. OCR Case No. 09-12-1020, Arcadia
Unified Sch. Dist. (July 24, 2013) (resolution letter and agreement)
(Arcadia Resolution Letter and Agreement), www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadialetter.pdf; www.justice.gov/sites/default/files/crt/legacy/2013/07/26/arcadiaagree.pdf. In the
resolution agreement, the district agreed to, among other things, treat
the transgender male student ``the same as other male students in all
respects.''
In 2014, OCR issued two more guidance documents that further
clarified Title IX's coverage of gender identity discrimination. In
April 2014, OCR issued the 2014 Q&A on Sexual Violence, which stated
for the first time in a guidance document that Title IX's prohibition
on sex discrimination extends to claims of discrimination based on
gender identity. 2014 Q&A on Sexual Violence at 5. Then in December
2014, OCR issued a Question-and-Answer document on single-sex classes
and extracurricular activities, which stated that ``[u]nder Title IX, a
recipient generally must treat transgender students consistent with
their gender identity in all aspects of the planning, implementation,
enrollment, operation, and evaluation of single-sex classes.'' U.S.
Dep't of Educ., Office for Civil Rights, Questions and Answers on Title
IX and Single-Sex Elementary and Secondary Classes and Extracurricular
Activities at 25 (Dec. 1, 2014) (2014 Q&A on Single-Sex Elementary and
Secondary Classes and Activities), www.ed.gov/ocr/docs/faqs-title-ix-single-sex-201412.pdf. Although the 2014 Q&A on Sexual Violence was
rescinded and replaced with new guidance in September 2017, the 2014
Q&A on Single-Sex Elementary and Secondary Classes and Activities is
still in effect.
In May 2016, OCR and DOJ's Civil Rights Division issued a joint
Dear Colleague Letter addressing the rights of transgender students
under Title IX, stating that ``the Departments treat a student's gender
identity as the student's sex for purposes of Title IX and its
implementing regulations.'' 2016 Dear Colleague Letter on Title IX and
Transgender Students at 2. The 2016 Dear Colleague Letter then
explained that ``[t]his means that a school must not treat a
transgender student differently from the way it treats other students
of the same gender identity.'' Id. The letter addressed the application
of Title IX with respect to harassment and issues related to
identification documents, names and pronouns, sex-separate activities
and facilities, and privacy and education records. It also included an
extensive set of citations to examples of OCR's resolutions of past
Title IX complaints and similar interpretations by courts and other
agencies of Federal laws prohibiting sex discrimination. After the 2016
Dear Colleague Letter on Title IX and Transgender Students was issued,
the Departments of Education and Labor revised regulations implementing
other Federal laws to adopt similar interpretations that prohibitions
on sex discrimination include discrimination based on gender identity,
as well as many aspects of discrimination based on sexual
orientation.\11\
---------------------------------------------------------------------------
\11\ In August 2016, the Department adopted regulations
governing Equity Assistance Centers under Title IV of the Civil
Rights Act of 1964 defining ``sex desegregation'' to mean
``assignment of students to public schools and within those schools
without regard to their sex (including transgender status; gender
identity; sex stereotypes, such as treating a person differently
because he or she does not conform to sex-role expectations because
he or she is attracted to or is in a relationship with a person of
the same sex; and pregnancy and related conditions), including
providing students with a full opportunity for participation in all
educational programs regardless of their sex.'' See 34 CFR 270.7;
U.S. Dep't of Educ., Office of Elementary and Secondary Educ., Final
Regulations, Equity Assistance Centers (Formerly Desegregation
Assistance Centers (DAC)), 81 FR 46807, 46816 (July 18, 2016),
https://www.govinfo.gov/content/pkg/FR-2016-07-18/pdf/2016-16811.pdf. This interpretation of the term ``sex'' is relevant to
the interpretation of Title IX because Title IX amended Title IV in
1972 to add sex segregation to the types of segregation that could
be addressed by technical assistance. Similarly, in December 2016,
DOL adopted regulations under Section 188 of WIOA, which
incorporates Title IX's prohibition on sex discrimination. These
regulations provide that unlawful sex-based discriminatory practices
include ``[t]reating an individual adversely because the individual
identifies with a gender different from that individual's sex
assigned at birth.'' See 29 CFR 38.7; U.S. Dep't of Labor, Office of
the Sec'y, Final Rule, Implementation of the Nondiscrimination and
Equal Opportunity Provisions of WIOA, 81 FR 87130, 87221 (Dec. 2,
2016), https://www.govinfo.gov/content/pkg/FR-2016-12-02/pdf/2016-27737.pdf. Neither of these regulatory provisions has been altered
or challenged since 2016.
---------------------------------------------------------------------------
In August 2016, a Federal district court issued an order finding
that the interpretation set out in the 2016 Dear Colleague Letter on
Title IX and Transgender Students was contrary to law and should not
have been issued without undergoing the notice-and-comment process
required by the Administrative Procedure Act and granted a nationwide
preliminary injunction barring OCR and DOJ from relying on the 2016
Dear Colleague Letter on Title IX and Transgender Students in their
enforcement of Title IX. Texas v. United States, 201 F. Supp. 3d 810
(N.D. Tex. 2016). Other Federal courts that reviewed the Department's
interpretation found it to be reasonable. See, e.g., G.G. ex rel. Grimm
v.
[[Page 41530]]
Gloucester Cnty. Sch. Bd., 822 F.3d 709, 723 (4th Cir. 2016) (according
controlling weight to the ``Department's interpretation of its own
regulation, Sec. 106.33), vacated and remanded, 137 S. Ct. 1239, 197
L. Ed. 2d 460 (2017); Bd. of Educ. of the Highland Loc. Sch. Dist. v.
U.S. Dep't of Educ., 208 F. Supp. 3d 850, 870 (S.D. Ohio 2016) (same);
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No. 16-CV-
943-PP, 2016 WL 5239829, at *3 (E.D. Wis. Sept. 22, 2016) (same), aff'd
sub nom. Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd.
of Educ., 858 F.3d 1034 (7th Cir. 2017), abrogated on other grounds as
recognized by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th
Cir. 2020).
In February 2017, DOJ and OCR issued a letter withdrawing the
statements of policy and guidance reflected in the 2016 Dear Colleague
Letter on Title IX and Transgender Students ``in order to further and
more completely consider the legal issues involved.'' U.S. Dep't of
Justice and U.S. Dep't of Educ., Office for Civil Rights, Dear
Colleague Letter on Transgender Students at 1 (Feb. 22, 2017) (2017
Dear Colleague Letter on Transgender Students), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf. On March
3, 2017, the court dissolved the preliminary injunction when the
plaintiffs voluntarily dismissed the lawsuit. Plaintiff's Notice of
Voluntary Dismissal, Texas v. United States, No. 7:16-cv-00054 (N.D.
Tex. Mar. 3, 2017), ECF No. 128.
When the Department amended the Title IX regulations in May 2020,
it declined to address Title IX's coverage of discrimination on the
basis of gender identity or sexual orientation, but noted in the
preamble to the 2020 amendments that the most recent position of the
United States in then-pending Supreme Court cases was ``(1) that the
ordinary public meaning of `sex' at the time of Title VII's passage was
biological sex and thus the appropriate construction of the word `sex'
does not extend to a person's sexual orientation or transgender status,
and (2) that discrimination based on transgender status does not
constitute sex stereotyping but a transgender plaintiff may use sex
stereotyping as evidence to prove a sex discrimination claim if members
of one sex (e.g., males) are treated less favorably than members of the
other sex (e.g., females).'' 85 FR 30178. The Department also declined
to define the term ``sex'' because it determined that doing so was not
necessary: Sexual harassment ``does not depend on whether the
definition of `sex' involves solely the person's biological
characteristics (as at least one commenter urged) or whether a person's
`sex' is defined to include a person's gender identity (as other
commenters urged).'' Id. The Department asserted, however, that ``Title
IX and its implementing regulations include provisions that presuppose
sex as a binary classification'' and that the Department has previously
acknowledged ``physiological differences between the male and female
sexes.'' Id.
Subsequently in June 2020, the Supreme Court held in Bostock that
sex discrimination, as prohibited by Title VII, encompasses
discrimination based on sexual orientation and gender identity, 140 S.
Ct. at 1737, even on the assumption (which the Court accepted for sake
of argument) that ``sex'' refers ``only to biological distinctions
between male and female,'' id. at 1739. The Court stated that to
discriminate on the basis of sexual orientation or gender identity
``requires an employer to intentionally treat individual employees
differently because of their sex.'' Id. at 1742. The Court explained
that when an employer fires a person for being gay or transgender, the
employer necessarily fires that person for ``traits or actions it would
not have questioned in members of a different sex.'' Id. at 1737. The
Court in Bostock found that ``no ambiguity exists about how Title VII's
terms apply to the facts before [it]''--i.e., allegations of
discrimination in employment against several individuals based on
sexual orientation and gender identity. Id. at 1749. Indeed, the Court
stated that ``it is impossible to discriminate against a person''
because of their sexual orientation or gender identity ``without
discriminating against that individual based on sex.'' Id. at 1741. In
the months immediately following the Supreme Court's decision in
Bostock, OCR took steps to clarify its position on Bostock's
application to Title IX. On August 31, 2020, OCR opened an
investigation of a complaint of sexual orientation discrimination. OCR
Case No. 04-20-1409, Shelby Cnty. Sch. Dist. (Aug. 31, 2020) (letter of
notification), http://www.ed.gov/ocr/letters/20200831-letter-of-notification.pdf. In its notification letter, OCR noted that although
there are differences between workplaces and schools, Bostock ``guides
OCR's understanding that discriminating against a person based on their
homosexuality or identification as transgender generally involves
discrimination on the basis of their biological sex.'' Id. at 2. OCR
indicated that it would investigate allegations that the complainant
had been subjected to `` `homophobic bigot[ry]' '' because she ``
`didn't date guys' '' and `` `likes girls' '' and that she had been
denied an opportunity because of her sexual orientation. Id. at 1.
On the same day, OCR issued a revised Letter of Impending
Enforcement Action in its investigation of the Connecticut
Interscholastic Athletic Conference (CIAC) and six school districts, in
which it denied that Bostock or its reasoning should alter its analysis
of Title IX's application to student participation on sex-separate
athletics teams. OCR Case No. 01-19-4025, Conn. Interscholastic
Athletic Conf. et al. (Aug. 31, 2020) (revised letter of impending
enforcement action) (Rev. CIAC Letter), http://www.ed.gov/ocr/docs/investigations/more/01194025-a2.pdf. The letter stated that when a
recipient provides ``separate teams for members of each sex'' under 34
CFR 106.41(b), ``the recipient must separate those teams on the basis
of biological sex'' and not on the basis of gender identity. Id. at 36.
The letter also departed from OCR's typical practice concerning
enforcement letters by stating that this letter ``constitutes a formal
statement of OCR's interpretation of Title IX and its implementing
regulations and should be relied upon, cited, and construed as such.''
Id. at 49. In 2021, however, OCR closed the investigation after
archiving and marking the letter ``not for reliance,'' citing its
inconsistency with Executive Order 13988 (describing Bostock) and the
fact that it was issued without having followed the appropriate
procedures required for issuing guidance.
In January 2021, the Department posted a memorandum signed by the
Principal Deputy General Counsel in its Office of the General Counsel,
which commented on Bostock's application to Title IX. U.S. Dep't of
Educ., Office for Civil Rights, Memorandum from Principal Deputy
General Counsel delegated the authority and duties of the General
Counsel Reed D. Rubinstein to Kimberly M. Richey, Acting Assistant
Secretary of the Office for Civil Rights re Bostock v. Clayton Cnty.
(Jan. 8, 2021) (archived and marked not for reliance 2021) (Rubinstein
Memorandum), https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf. The Rubinstein Memorandum stated
that the Bostock Court's ``assumption that the ordinary public meaning
of the term `sex' in Title VII means biological distinctions between
male and female . . . is consistent with and further supports the
Department's long-standing
[[Page 41531]]
construction of the term `sex' in Title IX to mean biological sex, male
or female.'' Rubinstein Memorandum at 2. The Rubinstein Memorandum also
pointed to the preamble to the 2020 amendments, specifically the
statement that `` `[i]n promulgating regulations to implement Title IX,
the Department expressly acknowledged physiological differences between
the male and female sexes,' '' to bolster its interpretation. Id. at 3.
The Rubinstein Memorandum stated that ``[c]onsistent with Bostock,
harassment on the basis of a person's transgender status or
homosexuality may implicate that person's biological sex and, thus, may
at least in part constitute `conduct on the basis of sex,' '' such that
it ``constitute[s] sexual harassment prohibited by Title IX.'' Id. at
6. However, the Rubinstein Memorandum also argued that ``Bostock's
holding and reasoning, to the extent relevant, support the Department's
position that Title IX's statutory and regulatory provisions permit,
and in some cases require, biological sex, male or female, to be taken
into account in an education program or activity.'' Id. Thus, the
Rubinstein Memorandum concluded, a recipient is required to separate
athletic participants ``solely based on their biological sex,'' to
restrict access to sex-separate facilities ``based on biological sex,''
and to rely on a student's ``biological'' sex in other circumstances in
which sex separation is permitted by Title IX. Id. at 7, 9, 12-13. The
Rubinstein Memorandum did not, however, explain how a school should
determine a student's ``biological'' sex. The Rubinstein Memorandum
stated that the Department's Office of the General Counsel was not
persuaded to follow the recent appellate cases to the contrary. Id. at
9-11 (discussing Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th
Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878
(2021); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286 (11th Cir.
2020), vacated and superseded, 3 F.4th 1299 (11th Cir. 2021), reh'g en
banc pending, 9 F.4th 1369 (11th Cir. 2021)).
In 2021, OCR archived the Rubinstein Memorandum and marked it ``not
for reliance,'' citing its inconsistency with Executive Order 13988
(describing Bostock) and its issuance without having followed the
procedures required for issuing guidance. In June 2021, after reviewing
the text of Title IX in light of the Supreme Court's decision in
Bostock and other Federal courts' decisions in Title IX cases, OCR
published a Notice of Interpretation in the Federal Register discussing
those cases and clarifying that Title IX's prohibition on sex
discrimination encompasses discrimination on the basis of sexual
orientation and gender identity. 2021 Bostock Notice of Interpretation,
86 FR 32637. In the Notice of Interpretation, OCR discussed the text of
Title IX and Federal courts' interpretation of Title IX and concluded
that the Supreme Court's reasoning in Bostock applies to Title IX. Id.
at 32638. OCR underscored the similarity of the relevant text of Title
VII and Title IX and recognized the harm these forms of discrimination
can cause to students, citing numerous court rulings recognizing harm
in individual students' cases. Id. at 32638-39. OCR made clear that
this interpretation would inform OCR's evaluation and investigation of
complaints but that it would not dictate the outcome in any particular
case or set of facts. Id. at 32639. The Notice of Interpretation did
not address how coverage of sexual orientation and gender identity
discrimination affects obligations under the current Title IX
regulations.
B. Proposed Regulations
Section 106.10 Scope
Current regulations: None.
Proposed regulations: The Department proposes adding this provision
to the regulations to clarify the scope of Title IX's prohibition on
discrimination on the basis of sex.
Reasons: The Department proposes adding a new section, Sec.
106.10, titled Scope, to its Title IX regulations to clarify Title IX's
coverage of specific forms of sex discrimination, including some that
are already addressed in the current regulations, such as
discrimination based on pregnancy or related conditions, and others
that are consistent with decisions of Federal courts and the
Department's identification of sex-based barriers to equal educational
opportunity. This new section would state that discrimination on the
basis of sex includes discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity.
As summarized above, the Department has at times articulated a
narrower interpretation of the scope of Title IX's prohibition on sex
discrimination. For example, the Department previously stated that
Title IX does not fully encompass discrimination on the basis of sexual
orientation or gender identity. See, e.g., 2001 Revised Sexual
Harassment Guidance at 3; 2010 Dear Colleague Letter on Harassment and
Bullying at 8; Preamble to the 2020 Amendments, 85 FR 30178-79. After
the Supreme Court decided Bostock, however, Department officials
acknowledged that Title IX covers sexual orientation and gender
identity discrimination, albeit only so far as the discrimination
impermissibly takes ``biological'' sex into account. See, e.g.,
Rubinstein Memorandum at 4.
The Department now believes that its prior position (i.e., that
Title IX's prohibition on sex discrimination does not encompass
discrimination based on sexual orientation and gender identity) is at
odds with Title IX's text and purpose and the reasoning of the Bostock
Court and other courts to have considered the issue in recent years--
both before and after Bostock.
Title IX and its implementing regulations do not use the term ``on
the basis of sex'' in a restrictive way. For example, consistent with
judicial interpretations, OCR has long recognized that Title IX
prohibits sexual harassment and discrimination based on sex
stereotypes. The specific forms of sex discrimination that the
Department proposes to add to the express prohibitions in Sec. 106.10
do not depend on resolving the question of whether the term ``sex'' is
limited to physiological or ``biological'' characteristics. As noted,
in certain documents in August 2020 and January 2021, the Department
indicated that Title IX's scope should be limited to discrimination
rooted in ``biological sex,'' but as Bostock demonstrated with respect
to Title VII, even accepting that definition of ``sex'' would not
preclude Title IX's coverage of these forms of discrimination. Given
that, and following the approach reflected in the 2020 regulations, the
Department does not propose adding a definition of ``sex'' here because
sex can encompass many traits and because it is not necessary for the
regulations to define the term for all circumstances. See 85 FR 30178;
cf. Schroer v. Billington, 424 F. Supp. 2d 203, 212-13 (D.D.C. 2006)
(construing the phrase ``because of . . . sex'' broadly is ``a
straightforward way to deal with the factual complexities that . . .
stem from real variations . . . in the different components'' of
sexuality, including ``chromosomal, gonadal, hormonal, and
neurological'' variations); Students & Parents for Priv. v. U.S. Dep't
of Educ., No. 16-CV-4945, 2017 WL 6629520, at *3 (N.D. Ill. Dec. 29,
2017) (``As the Magistrate Judge correctly recognized, however, and as
the Seventh Circuit has since conclusively held, federal protections
against sex discrimination are substantially broader than based only on
genitalia or chromosome.''); Rentos v. Oce[hyphen]Office Sys., No.
95[hyphen]cv[hyphen]7908, 1996
[[Page 41532]]
WL 737215, at *6 (S.D.N.Y. Dec. 24, 1996) (recognizing the many
different factors the medical community has determined to be pertinent
in identifying someone's gender).
The Supreme Court in Bostock similarly declined to resolve the
parties' dispute concerning the definition of ``sex'' under a civil
rights law prohibiting discrimination on the basis of sex. The Court
acknowledged the parties' competing definitions of ``sex'': the
employers' definition of the term as ``status as either male or female
[as] determined by reproductive biology,'' and the employees'
definition as ``capturing more than anatomy and reaching at least some
norms concerning gender identity and sexual orientation.'' 140 S. Ct.
at 1739. The Court declined to resolve that dispute because ``nothing
in our approach . . . turns on the outcome of the parties' debate''
about definitions. Id. The Court explained that, even if one assumes
``for argument's sake'' the employers' narrower definition of sex as
referring ``only to biological distinctions between male and female,''
discrimination ``because of sex'' occurs whenever an employer
discriminates against a person for being gay or transgender: In such a
circumstance, the Court explained, the employer ``intentionally treats
a person worse because of sex--such as by firing the person for actions
or attributes it would tolerate in an individual of another sex.'' Id.
at 1739-40; see also id. at 1741 (``If the employer intentionally
relies in part on an individual employee's sex when deciding to
discharge the employee--put differently, if changing the employee's sex
would have yielded a different choice by the employer--a statutory
violation has occurred.''). And, the Court explained, this is so
whether or not ``other factors besides the plaintiff's sex contributed
to the decision'' and regardless of whether ``the employer treated
women as a group the same when compared to men as a group.'' Id. at
1741. Bostock thus makes clear that it is ``impossible to discriminate
against a person'' on the basis of sexual orientation or gender
identity without ``discriminating against that individual based on
sex,'' even assuming that sex refers only to certain ``biological
distinctions.'' Id. at 1739, 1741.
The Department does not intend that the specific categories of
discrimination listed in proposed Sec. 106.10 would be exhaustive, as
evidenced by the use of the word ``includes.'' Title IX's broad
prohibition on discrimination ``on the basis of sex'' under a
recipient's education program or activity encompasses, at a minimum,
discrimination against an individual because, for example, they are or
are perceived to be male, female, or nonbinary; transgender or
cisgender; intersex; currently or previously pregnant; lesbian, gay,
bisexual, queer, heterosexual, or asexual; or gender-conforming or
gender-nonconforming. All such classifications depend, at least in
part, on consideration of a person's sex. The Department therefore
proposes to clarify in this section that, consistent with Bostock and
other Supreme Court precedent, Title IX bars all forms of sex
discrimination, including discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity.
Sex characteristics. Proposed Sec. 106.10 would also specifically
recognize that Title IX prohibits discrimination on the basis of sex
characteristics. These include a person's physiological sex
characteristics and other inherently sex-based traits. See Grimm, 972
F.3d at 608 (quoting Whitaker, 858 F.3d at 1051). The prohibition on
discrimination based on sex characteristics would cover, among other
things, discrimination based on intersex traits. The term ``intersex''
generally describes people with variations in physical sex
characteristics. These variations may involve anatomy, hormones,
chromosomes, and other traits that differ from expectations generally
associated with male and female bodies. Intersex traits are typically a
result of medical conditions, including but not limited to congenital
adrenal hyperplasia, Klinefelter syndrome, and androgen insensitivity
syndrome. Consortium on the Management of Disorders of Sex Development,
Clinical Guidelines for the Management of Disorders of Sex Development
in Childhood at 2-7 (2006), https://dsdguidelines.org/files/clinical.pdf.
Discrimination based on intersex traits is rooted in perceived
differences between an individual's specific sex characteristics and
those that are considered typical for their sex assigned at birth. As
discussed above, discrimination based on anatomical or physiological
sex characteristics (such as genitals, gonads, chromosomes, and hormone
function) is inherently sex-based. Thus, intersex traits are
``inextricably bound up with'' sex. Cf. Bostock, 140 S. Ct. at 1742;
id. at 1746 (discrimination against ``persons with one sex identified
at birth and another today'' is sex discrimination). The Department
therefore proposes to clarify that sex discrimination under Title IX
includes discrimination on the basis of sex characteristics, including
intersex traits.
Sexual orientation. Proposed Sec. 106.10 would clarify that the
regulations prohibit discrimination on the basis of sexual orientation.
Although the Department has previously stated that Title IX does not
prohibit discrimination based solely on sexual orientation, the
Department has long maintained that Title IX prohibits discrimination
and harassment based on sex stereotypes. See, e.g., 85 FR 30179; 2010
Dear Colleague Letter on Harassment and Bullying at 8; 2001 Revised
Sexual Harassment Guidance at 3. In June 2021, OCR published a notice
clarifying that, in light of the Supreme Court's decision in Bostock,
OCR interprets Title IX's prohibition on sex discrimination to
encompass discrimination on the basis of sexual orientation. 2021
Bostock Notice of Interpretation, 86 FR 32637. The Supreme Court in
Bostock provided examples to illustrate how sexual orientation
discrimination is necessarily a form of sex discrimination. In one
example, the Court stated:
Consider, for example, an employer with two employees, both of
whom are attracted to men. The two individuals are, to the
employer's mind, materially identical in all respects, except that
one is a man and the other a woman. If the employer fires the male
employee for no reason other than the fact he is attracted to men,
the employer discriminates against him for traits or actions it
tolerates in his female colleague. Put differently, the employer
intentionally singles out an employee to fire based in part on the
employee's sex, and the affected employee's sex is a but-for cause
of his discharge.
Bostock, 140 S. Ct. at 1741. As OCR explained in the 2021 Bostock
Notice of Interpretation, it carefully reviewed the Bostock decision,
the similarities in the text of Title VII and Title IX, the way other
Federal courts have analyzed Title IX's application to sexual
orientation discrimination and the sex-based harms that sexual
orientation discrimination causes and concluded that OCR's
interpretation of Title IX should be consistent with the Supreme
Court's reasoning in Bostock. Other Federal courts have likewise
recognized that Title IX covers sexual orientation discrimination. See,
e.g., Koenke v. Saint Joseph's Univ., No. CV 19-4731, 2021 WL 75778, at
*2 (E.D. Pa. Jan. 8, 2021); Doe v. Univ. of Scranton, No. 3:19-CV-
01486, 2020 WL 5993766, at *5 n.61 (M.D. Pa. Oct. 9, 2020); Videckis v.
Pepperdine Univ., 150 F. Supp. 3d 1151, 1159-60 (C.D. Cal. 2015).
Gender identity. Proposed Sec. 106.10 would also clarify that
Title IX prohibits
[[Page 41533]]
discrimination on the basis of an individual's gender identity. The
Department has previously described its jurisdiction over gender
identity discrimination in guidance documents and in filings in Federal
court. See, e.g., 2016 Dear Colleague Letter on Title IX and
Transgender Students; 2014 Q&A on Sexual Violence at 5; Brief for the
United States as Amicus Curiae Supporting Plaintiff-Appellant, Grimm,
822 F.3d 709 (No. 15-2056), https://www.justice.gov/crt/file/788971/download; Statement of Interest of the United States, Tooley v. Van
Buren Pub. Schs., No. 2:14-cv-13466-AC-DRG (E.D. Mich. Feb. 24, 2015),
https://www.justice.gov/sites/default/files/crt/legacy/2015/02/27/tooleysoi.pdf. Federal courts had likewise recognized that Title IX
covers gender identity discrimination. See, e.g., Grimm, 972 F.3d at
616-19; Whitaker, 858 F.3d at 1049-50. However, the Department
subsequently rescinded the 2016 Dear Colleague Letter on Title IX and
Transgender Students and declined to assert in the 2020 amendments that
Title IX prohibits discrimination on the basis of a person's gender
identity. See, e.g., 85 FR 30177-79. Then, following the Supreme
Court's decision in Bostock, the Department once again acknowledged
that complaints of discrimination on the basis of transgender status
``might fall within the scope of Title IX's non-discrimination mandate
because they allege sex discrimination.'' Rubinstein Memo at 4 (citing
Bostock, 140 S. Ct. at 1741, 1737). More recently OCR affirmed that
discrimination on the basis of sex under Title IX should align with the
Supreme Court's reasoning in Bostock. Thus, in its 2021 Bostock Notice
of Interpretation, OCR made clear that, consistent with Bostock, it
interprets Title IX's prohibition on sex discrimination to cover
discrimination on the basis of gender identity. 86 FR 32637 (citing
Bostock's holding that when an employer discriminates against a person
for being transgender, ``the employer necessarily discriminates against
that person for `traits or actions it would not have questioned in
members of a different sex''). The proposed regulations are consistent
with OCR's 2021 Bostock Notice of Interpretation and the interpretation
of Federal courts that have applied Bostock to Title IX.
Sex stereotypes. Proposed Sec. 106.10 would clarify that
discrimination based on sex stereotypes, i.e., fixed or generalized
expectations regarding a person's aptitudes, behavior, self-
presentation, or other attributes based on sex, is prohibited under
Title IX. The proposed regulations would codify the long-recognized
principle that Title IX and other sex discrimination laws prohibit
harassment and other forms of discrimination based on a person's
conformity or nonconformity to stereotypical notions of masculinity and
femininity. As the Supreme Court explained in Price Waterhouse v.
Hopkins, the assumption that persons must act and dress in a particular
way based on expectations related to a person's sex is a form of
discrimination on the basis of sex. See 490 U.S. at 235 (plurality
opinion) (``[T]he man who . . . bore responsibility for explaining to
Hopkins the reasons for the Policy Board's decision to place her
candidacy on hold [advised her that] in order to improve her chances
for partnership . . . Hopkins should `walk more femininely, talk more
femininely, dress more femininely, wear make-up, have her hair styled,
and wear jewelry.' ''); accord id. at 272 (O'Connor, J., concurring in
the judgment). ``[W]e are beyond the day,'' wrote the Court, ``when an
employer could evaluate employees by assuming or insisting that they
matched the stereotype associated with their group, for `[i]n
forbidding employers to discriminate against individuals because of
their sex, Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex stereotypes.'
'' Id. at 251 (plurality opinion) (internal citations omitted); see
also Bostock, 140 S. Ct. at 1742-43 (``[A]n employer who fires both
Hannah and Bob for failing to fulfill traditional sex stereotypes
doubles rather than eliminates Title VII liability . . . .''). Many
Federal courts have applied this principle and recognized the ways that
sex stereotyping can deprive students of equal access to education in
violation of Title IX. See, e.g., Whitaker, 858 F.3d at 1049 (``A
policy that . . . punishes [an] individual for his or her gender non-
conformance . . . violates Title IX.''); Pederson v. La. State Univ.,
213 F.3d 858, 880 (5th Cir. 2000) (recognizing that a university
violated Title IX when its funding decisions in athletics were based on
``paternalism and stereotypical assumptions about [women's] interests
and abilities,'' and a ``remarkably outdated view of women and
athletics''); Videckis, 150 F. Supp. 3d at 1160 (``It is undisputed
that Title IX forbids discrimination on the basis of gender
stereotypes.''); Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp.
2d 135, 152 (N.D.N.Y. 2011) (holding that allegations of peer
harassment based on nonconformity or perceived nonconformity with sex
stereotypes state a claim under Title IX); Seiwert v. Spencer-Owen
Cmty. Sch. Corp., 497 F. Supp. 2d 942, 953 (S.D. Ind. 2007) (holding
that harassment for ``acting in a manner that did not adhere to the
traditional male stereotypes'' states a Title IX claim); Riccio v. New
Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. 2006) (``The
language set forth in the [2001] OCR Guidance and the holding in Oncale
clearly support the conclusion that a female student, subjected to
pejorative, female homosexual names by other female students, can bring
a claim of sexual harassment under Title IX.''); Theno v. Tonganoxie
Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952, 965, 973 (D. Kansas
2005) (``[A] rational trier of fact could conclude that plaintiff was
harassed because his harassers perceived that he did not act as they
believed a man (or perhaps more accurately a teenage boy) should act''
when he was harassed for failing ``to satisfy his peers' stereotyped
expectations for his gender''); Montgomery v. Indep. Sch. Dist. No.
709, 109 F. Supp. 2d 1081, 1092 (D. Minn. 2000) (stating that a
reasonable factfinder ``could infer that [plaintiff] suffered
harassment due to his failure to meet masculine stereotypes''); cf.
United States v. Virginia, 518 U.S. 515, 533 (1996) (stating that in
making classifications based on sex, the State ``must not rely on
overbroad generalizations about the different talents, capacities, or
preferences of males and females'').
Title IX's prohibition on discrimination on the basis of sex
stereotypes is also embedded in the current regulations and OCR's
historical guidance documents. See, e.g., 34 CFR 106.34(b)(4)
(prohibiting single-sex classes that rely on ``overly broad
generalizations about the different talents, capacities, or preferences
of either sex''); 34 CFR 106.45(b)(1)(iii) (``Any materials used to
train Title IX Coordinators, investigators, decisionmakers, and any
person who facilitates an informal resolution process, must not rely on
sex stereotypes and must promote impartial investigations and
adjudications of formal complaints of sexual harassment.''); 2001
Revised Sexual Harassment Guidance at 3 (``[G]ender-based harassment,
which may include acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex or sex-stereotyping, but not
involving conduct of a sexual nature, is also a form of sex
discrimination to which a school must respond . . . .''
[[Page 41534]]
(footnote omitted)). The proposed addition of this new section would be
consistent with these provisions and increase clarity of Title IX's
coverage of discrimination based on sex stereotypes.
Pregnancy or related conditions. Proposed Sec. 106.10 would also
clarify that the regulations prohibit discrimination based on pregnancy
or related conditions, consistent with the Department's longstanding
interpretation of Title IX and as explained in more detail in the
discussion of proposed amendments to Sec. Sec. 106.2, 106.21, 106.40,
106.51, and 106.57 in Pregnancy and Parental Status (Section III).
In sum, the Department proposes to clarify Title IX's scope in
proposed Sec. 106.10 to more closely align with Title IX's text,
purpose, and principles articulated in Federal case law and to more
effectively protect people from all forms of sex discrimination under
federally funded education programs and activities.
Section 106.31(a) Education Programs or Activities--General
Current regulations: Section 106.31(a) describes generally the
conduct prohibited by Title IX and notes the limited application of
this subpart to admissions to certain classes of institutions.
Proposed regulations: The Department proposes adding the word
``otherwise'' in redesignated paragraph (a)(1) and renumbering the
paragraph accordingly. The Department also proposes adding a new
paragraph (a)(2) to clarify that in the limited circumstances in which
Title IX or the regulations permit different treatment or separation on
the basis of sex, a recipient must not carry out such different
treatment or separation in a manner that discriminates on the basis of
sex by subjecting a person to more than de minimis harm, unless
otherwise permitted by Title IX or the regulations. Proposed Sec.
106.31(a)(2) would clarify that adopting a policy or engaging in a
practice that prevents a person from participating in an education
program or activity consistent with their gender identity subjects a
person to more than de minimis harm on the basis of sex. Reasons:
Adding the word ``otherwise'' before ``be subjected to discrimination
under'' would clarify that denial of benefits based on sex and
exclusion from participation based on sex are themselves forms of
prohibited sex discrimination. The statute and current regulations
generally use the term ``discrimination'' to describe any form of
prohibited conduct under Title IX or the regulations--including when a
person is, on the basis of sex, excluded from participation in or
denied the benefits of an education program or activity receiving
Federal financial assistance. See, e.g., 20 U.S.C. 1681(a) (titled
``Prohibition against discrimination''); 34 CFR part 106 (titled
``Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance''); 34 CFR 106.1
(Title IX is ``designed to eliminate (with certain exceptions)
discrimination on the basis of sex''). Regulations implementing other
civil rights laws with similar statutory language also use the term
``otherwise'' in this context to make clear that ``discrimination'' is
an umbrella term describing all conduct prohibited by the statute. See,
e.g., 34 CFR 100.1, 100.3(a) (Title VI); 34 CFR 104.4(a), 104.4(b)(5),
104.21, 104.43(a), 104.44(d) (Section 504).
Proposed Sec. 106.31(a)(2) would clarify that in the discrete
circumstances when Title IX or the regulations permits a recipient to
separate or treat persons differently on the basis of sex, a recipient
must not do so in a manner that discriminates on the basis of sex by
subjecting a person to more than de minimis harm unless otherwise
permitted by Title IX or the regulations.
When a recipient separates girls and boys, or women and men, or
applies different rules to them, it treats such persons ``on the basis
of [sex].'' This understanding of sex-based different treatment does
not depend on any particular definition of the term ``sex.'' A
recipient's action is based on sex, for example, if it relies upon
``biological distinctions between male and female.'' Cf. Bostock, 140
S. Ct. at 1739.
Since 1975, the Department's regulations have specified that such
separate or differential treatment on the basis of sex is presumptively
a form of prohibited sex discrimination. See, e.g., 34 CFR
106.31(b)(4), (7) (``Except as provided in this subpart, in providing
any aid, benefit, or service to a student, a recipient shall not, on
the basis of sex . . . [s]ubject any person to separate or different
rules of behavior, sanctions, or other treatment; [or] [o]therwise
limit any person in the enjoyment of any right, privilege, advantage,
or opportunity.''); see also id. at 106.34(a) (``Except as provided for
in this section or otherwise in this part, a recipient shall not
provide or otherwise carry out any of its education programs or
activities separately on the basis of sex . . . .''); id. at 106.41(a)
(``No person shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, be treated differently from another
person or otherwise be discriminated against in any interscholastic,
intercollegiate, club or intramural athletics offered by a recipient,
and no recipient shall provide any such athletics separately on such
basis.''). These regulations, which were the subject of a congressional
hearing before they took effect and which Congress did not take steps
to disapprove,\12\ reflect the understanding that subjecting students
to differential treatment on the basis of their sex in the education
context is presumptively harmful, including because such differential
treatment is often based upon, and thus perpetuates, ``overbroad
generalizations about the different talents, capacities, or
preferences'' of the sexes. Virginia, 518 U.S. at 533.
---------------------------------------------------------------------------
\12\ In 1974, HEW proposed regulations that contained earlier,
materially identical versions of these general, presumptive
prohibitions on sex-based separation and differential treatment. See
39 FR 22228, 22235-36 (1974) (proposing 45 CFR 86.31(b)(4) & (8),
86.34(a), 86.38(a)). President Ford approved those regulations and
submitted them to the Speaker of the House and the President of the
Senate for review pursuant to Section 431(d)(1) of the GEPA, under
which Congress had 45 days in which to assess whether the rule was
``inconsistent with the Act from which it derives its authority, and
disapprove such final regulation.'' Public Law 93-380, 88 Stat. 567,
Sec. 431(d)(1), previously codified at 20 U.S.C. 1232(d)(1).
Congress did not take any steps to disapprove the regulations
because of these provisions, and the final regulations, which
included the same provisions, were published on June 4, 1975, and
went into effect on July 21, 1975. See 40 FR 24128, 24141-42 (1975).
---------------------------------------------------------------------------
Nevertheless, the Department has never treated all distinctions
based on sex as impermissible discrimination. The Department's
regulations have recognized limited contexts in which recipients are
permitted to employ sex-specific rules or to separate students on the
basis of sex because the Department has determined that in those
contexts such treatment does not generally impose harm on students.
See, e.g., 34 CFR 106.33 (toilet, locker room, and shower facilities);
id. at 106.34(a)(3) (human sexuality classes).
Although the Department has the authority to interpret the statute
and promulgate regulations, its regulations must not contradict the
express provisions of the statute. Rather, those regulatory provisions
are premised on the understanding that in certain situations, the fact
that a recipient employs a sex-based distinction or separation does
not, as such, amount to ``discrimination'' that Title IX forbids in the
first place. In particular, to the extent separation or different
treatment based on sex imposes no harm or only de minimis harm, it will
not amount to discrimination on the basis of sex under Title IX. Cf.
Oncale, 523 U.S. at 81 (Title VII does not reach non-harmful
``differences in the ways men and
[[Page 41535]]
women routinely interact with'' each other.)
There may be, however, circumstances in which even generally
permissible sex-based treatment would cause more than de minimis harm
to protected individuals. Proposed Sec. 106.31(a)(2) would clarify
that in these circumstances, the harmful treatment would be
discriminatory and therefore prohibited by Title IX, unless otherwise
permitted by the statute or regulations. See Peltier v. Charter Day
Sch., Inc., Nos. 20-1001, 20-1023, 2022 WL 2128579, at *16 (4th Cir.
June 14, 2022) (en banc) (``for the plaintiffs to prevail under Title
IX, they must show that . . . the challenged action caused them harm,
which may include `emotional and dignitary harm' '' (internal citation
omitted)); cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
59-60 (2006) (``No one doubts that the term `discriminate against'
refers to distinctions or differences in treatment that injure
protected individuals.''); see also Threat v. City of Cleveland, 6
F.4th 672, 678 (6th Cir. 2021) (``To `discriminate' reasonably sweeps
in some form of an adversity and a materiality threshold.'').
Such harm may result, for example, if the sex separation or
differential treatment is based upon, and thus perpetuates, ``overbroad
generalizations about the different talents, capacities, or
preferences'' of the sexes, Virginia, 518 U.S. at 533, or upon other
harmful sex stereotypes. See 34 CFR 106.34(b)(4)(i) (requiring
recipients to ensure that single-sex classes and activities permitted
under the regulations do not rely upon ``overly broad generalizations
about the different talents, capacities, or preferences of either
sex'').
In addition, prohibited harm may result when a recipient applies a
generally permissible sex-based policy, or makes an otherwise
permissible sex-based distinction, in a manner that discriminates
against one or more protected individuals by subjecting them to more
than de minimis harm on the basis of sex. In these situations, even
when a recipient's sex-specific treatment or separation does not
materially harm most students to whom it applies, and therefore may
generally be maintained by a recipient, Title IX prohibits its
application to those individual students who would suffer more than de
minimis harm on the basis of sex. See, e.g., Grimm, 972 F.3d at 617-18
(applying Title IX's statutory prohibition against discrimination on
the basis of sex when sex-based separation caused harm). This is
because the statute specifies that ``no person'' shall be subjected to
discrimination on the basis of sex in a federally funded education
program or activity unless otherwise permitted by the statute. In
Bostock, the Court explained that Title VII's prohibition on
discrimination against an ``individual'' means that the ``focus should
be on individuals, not groups.'' 140 S. Ct. at 1740. Use of the term
``person'' in Title IX compels the same conclusion. See Jackson, 544
U.S. at 180 (``Congress enacted Title IX not only to prevent the use of
federal dollars to support discriminatory practices, but also `to
provide individual citizens effective protection against those
practices.' '' (quoting Cannon, 441 U.S. at 704 (stating that, in
enacting Title IX, Congress ``wanted to provide individual citizens
effective protection against those [discriminatory] practices''))).
In particular, courts have recognized that a recipient subjects
students to such harm when it bars them from accessing otherwise
permissible sex-separate facilities or activities consistent with their
gender identity. See, e.g., Whitaker, 858 F.3d at 1045-46 (discussing
district court's findings, based on expert testimony, that denying
transgender student's access to a sex-separate education program or
activity consistent with his gender identity imposed significant harm
on his mental health and overall well-being); Grimm, 972 F.3d at 617-18
(holding that evidence that a transgender boy suffered physical,
emotional, and dignitary harms as a result of being denied access to a
sex-separate program or activity consistent with his gender identity
was sufficient to constitute harm under Title IX); B.P.J. v. W. Va.
State Bd. of Educ., 550 F. Supp. 3d 347, 356 (S.D. W. Va. 2021)
(finding a likelihood of success on middle school student's Title IX
claim challenging a State law excluding her from a sex-separate
education program or activity because she alleged that the law ``both
stigmatizes and isolates'' her); Bd. of Educ. of the Highland Loc. Sch.
Dist., 208 F. Supp. 3d at 870-71 (describing stigma and isolation
caused by district's exclusion of transgender girl from a sex-separate
education program or activity consistent with her gender identity).\13\
---------------------------------------------------------------------------
\13\ Research suggests that school policies that permit students
to participate consistent with their gender identity may be
associated with better mental health. See, e.g., Stephen T. Russell
et al., Chosen Name Use Is Linked to Reduced Depressive Symptoms,
Suicidal Ideation, and Suicidal Behavior among Transgender Youth, 63
J. Adolescent Health 503, 505 (2018), https://pubmed.ncbi.nlm.nih.gov/29609917 (describing gender-affirming
policies that ``likely enhance safety and reduce physical and mental
health disparities for transgender populations'').
---------------------------------------------------------------------------
For these reasons, proposed Sec. 106.31(a)(2) would make clear
that preventing any person from participating in an education program
or activity consistent with their gender identity would subject them to
more than de minimis harm on the basis of sex and therefore be
prohibited, unless otherwise permitted by Title IX or the regulations.
Some members of the public have urged the Department that Title IX
does not prohibit harms that result when a student is separated or
treated differently based on sex in a way that is inconsistent with
their gender identity. These members of the public have argued that
preventing transgender students from accessing sex-separate spaces and
programs consistent with their gender identity will serve to protect
other students from harms to their safety, privacy, and comfort. The
Department recognizes schools' legitimate interest in protecting the
safety and privacy of all students. Yet schools can and do protect
those interests without also causing harm to other students by
excluding them from sex-separate spaces and programs. See, e.g.,
Rehearing Amicus Brief of School Administrators from Twenty-Nine States
and the District of Columbia in Support of Plaintiff-Appellee Gavin
Grimm, Grimm, 972 F.3d 586 (No. 19-1952), 2019 WL 6341095. Indeed,
Federal courts have rejected claims that treating students consistent
with their gender identity harms cisgender students in violation of
Title IX, and have specifically addressed and dismissed unsubstantiated
concerns about privacy and safety associated with treating people
consistent with their gender identity. See, e.g., Grimm, 972 F.3d at
626 (Wynn, J., concurring) (describing and debunking ``transgender
predator'' myth); Whitaker, 858 F.3d at 1052 (holding that transgender
student's presence provides no more of a risk to other students'
privacy rights than does the presence of any other student in a sex-
separate space); Doe v. Boyertown Area School District, 897 F.3d 518,
521 (3d Cir. 2018) (same); Parents for Priv. v. Barr, 949 F.3d 1210,
1228-29 (9th Cir.), cert. denied, 141 S. Ct. 894 (2020) (holding that
``[t]he use of facilities for their intended purpose, without more,
does not constitute an act of harassment simply because a person is
transgender''); Cruzan v. Special Sch. Dist. # 1, 294 F.3d 981, 984
(8th Cir. 2002) (per curiam) (holding that transgender woman's mere
presence in a sex-separate space did not constitute actionable sexual
harassment of her female co-workers). The Supreme Court
[[Page 41536]]
has also rejected the notion that the preferences or discomfort of some
can justify otherwise unconstitutional discrimination against others.
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450 (1985).
Proposed Sec. 106.31(a)(2) would also recognize that, despite
Title IX's general prohibition on sex discrimination against an
individual, there are circumscribed situations in which Title IX or the
regulations permit a recipient to separate students on the basis of
sex, even where doing so may cause some students more than de minimis
harm. For example, 20 U.S.C. 1681 specifically exempts certain sex-
specific practices of certain designated entities from coverage by
Title IX's antidiscrimination mandate. See, e.g., 20 U.S.C. 1681(a)(5)
(stating that 20 U.S.C. 1681 shall not apply to the admissions
practices of traditionally single sex public institutions of
undergraduate higher education); 20 U.S.C. 1681(a)(6) (stating that 20
U.S.C. 1681 shall not apply to the membership practices of social
fraternities or sororities or certain voluntary youth organizations).
Congress also enacted a specific, separate provision of Title IX with
respect to living facilities, which provides that ``[n]otwithstanding
anything to the contrary contained in [Title IX],'' including Title
IX's general prohibition on sex discrimination by recipients of federal
funds in 20 U.S.C. 1681, nothing in Title IX ``shall be construed to
prohibit any educational institution receiving funds under this Act,
from maintaining separate living facilities for the different sexes.''
20 U.S.C. 1686. Of Title IX's voluminous legislative history, the
debate over 20 U.S.C. 1686 fills only a few pages, all of which focus
on the narrow question of whether Title IX should be understood to
mandate coeducational living in all instances in light of the then-
growing prevalence of coeducational dormitories. Rep. Standish Thompson
of Georgia introduced an amendment that ``simply would state that
nothing contained herein shall preclude any educational institution
from maintaining separate living facilities because of sex.'' 117 Cong.
Rec. 39260 (1971) (statement of Rep. Standish Thompson). Rep. Thompson
further stated that ``[a]ll this amendment does is to allow for
different living accommodations for the sexes,'' and urged his
colleagues to support it--as they did, without recorded opposition. Id.
at 39263.
The Department's current view is thus that regardless of whether
some students might experience more than de minimis harm if excluded
from a particular sex-separate living facility on the basis of sex,
Congress has nonetheless permitted that exclusion. Congress's choice to
specify limited circumstances where harm resulting from sex separation
is permitted illustrates that, outside of those contexts, Title IX's
general prohibition on sex discrimination prohibits such harm.
Moreover, 20 U.S.C. 1686 itself affects only one aspect of Title
IX's nondiscrimination mandate, even within the context of ``living
facilities.'' Schools may maintain ``separate living facilities for the
different sexes.'' 20 U.S.C. 1686. The Department's regulations,
however, have long provided that housing offered for students of one
sex must ``as a whole'' be ``[c]omparable in quality and cost'' to the
housing offered to students of the other sex. 34 CFR 106.32(b)(2)(ii).
The Supreme Court's observation that Title IX's protection against
discrimination must be construed broadly reinforces that view. N. Haven
Bd. of Educ., 456 U.S. at 521 (``[I]f we are to give Title IX the scope
that its origins dictate, we must accord it a sweep as broad as its
language.'' (citations and internal alterations omitted)).
The Department also recognizes that exclusion from a particular
male or female athletics team may cause some students more than de
minimis harm, and yet that possibility is allowed under current Sec.
106.41(b). The Department's authority to permit such different
treatment in the context of athletics is described in the discussion of
Sec. 106.41.
In addition, the regulations also specify circumstances in which a
recipient may not afford students of one sex preferential benefits or
treatment that it denies to students of the other sex--another form of
prohibited sex discrimination. See, e.g., 34 CFR 106.33 (providing that
a recipient ``may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex''); id. at 106.34(b) (providing that
nonvocational coeducational elementary or secondary schools may provide
nonvocational single-sex classes or extracurricular activities if doing
so is ``substantially related to achieving'' an ``important''
objective, but only if, inter alia, ``[t]he recipient provides to all
other students, including students of the excluded sex, a substantially
equal coeducational class or extracurricular activity in the same
subject or activity'').
* * * * *
The Department has previously articulated inconsistent
interpretations with respect to how a recipient must treat a student's
gender identity when the recipient is otherwise permitted to separate
or treat students differently on the basis of sex. Between 2013 and
2016, the Department investigated and resolved complaints to address
noncompliance with Title IX regarding schools' denial of transgender
students' access to education programs or activities consistent with
their gender identity and issued policy guidance explaining how Title
IX bars gender identity discrimination. See, e.g., Arcadia Resolution
Letter and Agreement; 2016 Dear Colleague Letter on Title IX and
Transgender Students.
In 2017, however, the Department withdrew the 2016 Dear Colleague
Letter on Title IX and Transgender Students to ``further and more
completely consider the legal issues involved.'' See 2017 Dear
Colleague Letter on Transgender Students. In 2020, in a letter
subsequently archived and marked not for reliance, the Department
asserted in the context of an enforcement case that permitting
transgender girls to participate on a girls' athletics team denied
cisgender girls athletic benefits and opportunities in violation of
Title IX. See Revised CIAC Letter at 3-4. Then, in January 2021, in a
memorandum subsequently archived and marked not for reliance, the
Department interpreted its Title IX regulations to require that a
recipient rely on a student's ``biological'' sex in circumstances in
which sex separation or sex-specific treatment is permitted under Title
IX and these regulations, based on the argument that this was ``the
ordinary public meaning of the term `sex' at the time of Title IX's
enactment,'' that the original implementing regulations included
provisions acknowledging ``physiological differences between the male
and female sexes,'' and that this has been ``OCR's longstanding
construction'' of the term. Rubinstein Memorandum at 2, 3 (quoting 85
FR 30178), 7, 9, 12-13. The Department also stated that refusing to
treat a student consistent with their gender identity generally would
not violate Title IX. See Rubinstein Memorandum at 4; see also U.S.
Dep't of Educ., Office for Civil Rights, Letter from Assistant
Secretary Kenneth L. Marcus to Representative Mark E. Green (Mar. 9,
2020), http://www.ed.gov/ocr/correspondence/congress/20200309-title-ix-and-use-of-preferred-pronouns.pdf. The Rubinstein Memorandum explained
that the
[[Page 41537]]
Department was not persuaded by the decisions of Federal appellate
courts to the contrary. Rubinstein Memorandum at 10-11.
In the June 2021 Title IX Public Hearing, in listening sessions,
and during meetings held under Executive Order 12866 in 2022,
stakeholders urged the Department to clarify that Title IX's
prohibition on sex discrimination includes discrimination based on
gender identity following the Supreme Court's ruling in Bostock and
that it also prohibits recipients from treating transgender students
based upon their actual or perceived physiological characteristics
rather than their gender identity. Stakeholders specifically expressed
concern about how regulatory provisions that permit sex separation and
sex-specific norms have been implemented in ways that harm transgender
students and explained how barriers to participating in school
consistent with those students' gender identity cause a range of
serious dignitary, academic, social, psychological, and physical harms.
The Department has reevaluated its approach to Title IX's
application to discrimination based on gender identity after reviewing
and considering the scope of Title IX's nondiscrimination mandate,
interpretations of Federal courts, public feedback, and the standards
OCR has long applied to evaluate compliance with current Sec. 106.41.
The Department's further review confirms that the interpretations
articulated in statements such as the Rubinstein Memorandum and Revised
CIAC Letter are inconsistent with the text and purpose of the Title IX
statute and regulations.
Contrary to assertions made in 2020 and January 2021, the
Department does not have a ``long-standing construction'' of the term
``sex'' in Title IX to mean ``biological sex.'' The text of the statute
and current regulations do not resolve this issue; neither the statute
nor the regulations define ``sex,'' purport to restrict the scope of
sex discrimination to biological considerations, or even use the term
``biological.'' The Department does not construe the term ``sex'' to
necessarily be limited to a single component of an individual's anatomy
or physiology. Further, the Department need not define ``sex,'' as
explained in more detail above in the discussion of proposed Sec.
106.10. Just as the Supreme Court in Bostock declined to engage in the
parties' debate over dictionary definitions, the Department also
focuses in its proposed regulations on ``what [the law] says about''
sex in context. 140 S. Ct. at 1739. As the regulations have stated
since they were first issued in 1975, the purpose of the Department's
Title IX regulations is to effectuate the statute, ``which is designed
to eliminate (with certain exceptions) discrimination on the basis of
sex in any education program or activity receiving Federal financial
assistance.'' 34 CFR 106.1. In any event, and as Bostock demonstrates,
treating individuals in a particular way on the basis of ``biological
distinctions between male and female,'' 140 S. Ct. at 1739, is action
taken ``on the basis of'' sex, however else the term ``sex'' might also
be defined. And, as discussed above, if such sex-based action results
in more than de minimis harm to an individual, it constitutes
prohibited sex discrimination unless permitted by the statute or the
regulations. When a person is denied access to education programs or
activities consistent with their gender identity, it causes them more
than de minimis harm on the basis of sex. Therefore, such treatment
generally violates Title IX's prohibition on discrimination to the
extent it causes more than de minimis harm and unless otherwise
permitted by Title IX or the regulations, and the Department's
regulations should effectuate that prohibition. 20 U.S.C. 1682.
Section 106.41 Athletics
Current regulations: Although paragraph (a) of current Sec. 106.41
establishes a baseline rule that ``[n]o person shall, on the basis of
sex, be . . . treated differently from another person . . . in any
interscholastic, intercollegiate, club or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis,'' paragraph (b) authorizes a recipient to
offer male and female athletic teams when selection for such teams is
based upon competitive skill or the activity involved is a contact
sport. However, when a recipient operates or sponsors a team in a
particular sport for members of one sex but operates or sponsors no
such team for members of the excluded sex, and athletics opportunities
for members of that sex have previously been limited, members of the
excluded sex must be allowed to try out for the team offered unless the
sport involved is a contact sport. Paragraph (b) also lists examples of
contact sports. Paragraph (c), in turn, establishes that even where a
recipient does offer male and female teams, ``[a] recipient . . . shall
provide equal athletic opportunity'' for the sexes.
Proposed regulations: None. The Department does not propose any
particular changes to Sec. 106.41 at this time. The Department instead
plans to issue a separate notice of proposed rulemaking to address
whether and how the Department should amend Sec. 106.41 in the context
of sex-separate athletics, pursuant to the special authority Congress
has conferred upon the Secretary to promulgate reasonable regulations
with respect to the unique circumstances of particular sports.
Specifically, the Department plans to address by separate notice of
proposed rulemaking the question of what criteria, if any, recipients
should be permitted to use to establish students' eligibility to
participate on a particular male or female athletics team. The scope of
public comment on this notice of proposed rulemaking therefore does not
include comments on that issue; those comments should be made in
response to that separate rulemaking.
Reasons: Athletics has long been recognized by Federal courts,
Congress, and the Department as an integral part of a recipient's
education program or activity subject to Federal civil rights
requirements. See, e.g., U.S. Dep't of Health, Educ., and Welfare,
Final Rule: Nondiscrimination on the Basis of Sex In Education Programs
and Activities Receiving or Benefiting from Federal Financial
Assistance, 40 FR 24128, 24134 (June 4, 1975) (citing cases); U.S.
Dep't of Health, Educ., and Welfare, Office for Civil Rights, A Policy
Interpretation: Title IX and Intercollegiate Athletics, 44 FR 71413
(Dec. 11, 1979), https://www.govinfo.gov/content/pkg/FR-1979-12-11/pdf/FR-1979-12-11.pdf; N. Haven Bd. of Educ., 456 U.S. at 516, 531-32
(noting that the Title IX regulations cover athletics and describing
congressional review of those regulations). School-based athletic
programs have been associated with many physical, emotional, academic,
and interpersonal benefits for students, and athletics participation
has the potential to help students develop skills that benefit them in
school and throughout life, including teamwork, discipline, resilience,
leadership, confidence, social skills, and physical fitness. See, e.g.,
Scott L. Zuckerman et al., The Behavioral, Psychological, and Social
Impacts of Team Sports: A Systematic Review and Meta-analysis, 49
Physician & Sports Med. 246 (2021); Ryan D. Burns et al., Sports
Participation Correlates With Academic Achievement: Results From a
Large Adolescent Sample Within the 2017 U.S. National Youth Risk
Behavior Survey, 127 Perceptual & Motor Skills 448 (2020); Parker v.
Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 916 (7th Cir. 2012)
(``The impact of Title IX on student athletes is significant and
[[Page 41538]]
extends long beyond high school and college; in fact, numerous studies
have shown that the benefits of participating in team sports can have
life-long positive effects on women.'' (citations omitted)).
Despite the general principle that differential treatment or
separation based on sex presumptively results in prohibited sex-based
discrimination, Congress has authorized the Department to approach
athletics in a distinct manner. In 1974, responding to concerns that
Title IX would disrupt intercollegiate athletics, Congress enacted the
Javits Amendment as part of the Education Amendments of 1974 to
specifically authorize the Department to promulgate reasonable
regulations in the context of athletics in light of ``the nature of
particular sports.'' Education Amendments of 1974, Public Law 93-380,
844, 88 Stat. 484, 612 (1974). The Javits Amendment states:
The [HEW] Secretary shall prepare and publish, not later than 30
days after the date of enactment of this Act, proposed regulations
implementing the provisions of title IX of the Education Amendments
of 1972 relating to the prohibition of sex discrimination in
federally assisted education programs which shall include with
respect to intercollegiate athletic activities reasonable provisions
considering the nature of particular sports.
Id.; see also S. Conf. Rep. 93-1026, 1974 U.S.C.C.A.N. 4206, 4271. The
Secretary responded to this congressional direction by promulgating a
regulation permitting sex separation in athletics in certain
circumstances in ``any interscholastic, intercollegiate, club or
intramural athletics offered by a recipient.'' 45 CFR 86.41(a) (1975);
see also U.S. Dep't of Health, Educ., and Welfare, Sex Discrimination
in Athletic Programs, 40 FR 52655 (Nov. 11, 1975). Under Section
431(d)(1) of GEPA, Congress had forty-five days to find that HEW's
``final regulation is inconsistent with the Act from which it derives
its authority, and disapprove such final regulation.'' Congress did not
take any steps to disapprove the regulation, and the regulation went
into effect on July 21, 1975.
The 1975 athletics regulation, still in effect today, provides that
when selection for athletic teams is based upon competitive skill or
the activity involved is a contact sport, a recipient may offer teams
either separately by sex or on a coeducational basis. The Department
made clear that, in some instances, individual students may be denied
access to particular teams as a result of such decisions, so long as
``equal opportunity'' is ensured across ``the totality of the athletic
program of the institution rather than each sport offered.'' 40 FR
52656. As one court explained, the regulations grant some ``flexibility
to the recipient of federal funds to organize its athletic program as
it wishes, so long as the goal of equal athletic opportunity is met.''
Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 171 (3d Cir. 1993).
Thus, the Education Amendments of 1974 established that, as to
intercollegiate athletics, Congress contemplated that the Department
might promulgate regulations that permit sex separation in contexts and
in a manner that Title IX might otherwise prohibit, as long as such
regulations are ``reasonable'' and result in overall equality in
athletic opportunities for the sexes. Congress's effective approval of
the 1975 HEW regulation reflects a further legislative understanding
that, even apart from the intercollegiate setting, the Department's
regulations could allow recipients to adopt rules for male and female
teams that may result in a denial of participation for individual
students. These developments embody a longstanding congressional view
that athletics presents unique considerations, and that therefore the
Department may promulgate regulations to account for those
considerations in ways that may sometimes deprive individual students,
based on sex, of opportunities to fully participate on particular
athletic teams, as long as the regulations are otherwise reasonable and
require a recipient to provide equal athletics opportunities in its
program as a whole.
Consistent with Title IX and with Congress's decision to afford the
Secretary special discretion to promulgate regulations in the unique
context of athletics, the Department will consider, in a separate
notice of proposed rulemaking, amendments to Sec. 106.41 to address
whether and how the Department should amend Sec. 106.41 in the context
of sex-separate athletics, pursuant to the special authority Congress
has conferred upon the Secretary to promulgate reasonable regulations
with respect to the unique circumstances of particular sports,
including what criteria, if any, recipients should be permitted to use
to establish students' eligibility to participate on a particular male
or female athletics team.
V. Retaliation
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance,''
20 U.S.C. 1681(a), but does not specifically mention retaliation for
the exercise of rights under Title IX. Although it is not explicit in
the statutory language of Title IX, the Supreme Court and the
Department have long interpreted Title IX to prohibit retaliation. The
Department has the authority to regulate with regard to discrimination
on the basis of sex in education programs or activities receiving
Federal financial assistance, specifically under 20 U.S.C. 1682 and
generally under 20 U.S.C. 1221e-3 and 3474.
Section 106.2 Definitions of ``Retaliation'' and ``Peer Retaliation''
Current regulations: The current regulations do not define
``retaliation,'' however, current Sec. 106.71(a) specifies the conduct
that constitutes prohibited retaliation. Current Sec. 106.71(a) states
in part that ``[n]o recipient or other person may intimidate, threaten,
coerce, or discriminate against another individual for the purpose of
interfering with any right or privilege secured by title IX or this
part, or because the individual has made a report or complaint,
testified, assisted, or refused to participate in any manner in an
investigation, proceeding, or hearing under this part.''
The current regulations do not include a definition of ``peer
retaliation,'' or use the term ``peer retaliation,'' however, current
Sec. 106.71(a) prohibits a ``recipient or other person'' from
retaliating against ``any individual.''
Proposed regulations: The Department proposes defining the term
``retaliation'' in Sec. 106.2 to mean intimidation, threats, coercion,
or discrimination against any person by the recipient or by a specific
individual affiliated with the recipient, including a student, an
employee, or a person who provides aid, benefit, or service on behalf
of the recipient.
The proposed definition would encompass both retaliation by the
recipient, including through its employees or others who are authorized
by the recipient to provide aid, benefit, or service under the
recipient's education program or activity, and retaliation by students
against other students. For clarity, the Department proposes defining
the term ``peer retaliation'' separately in proposed Sec. 106.2.
The proposed definition would further clarify that these actions
would constitute retaliation if they are taken for the purpose of
interfering with any right or privilege secured by Title IX or the
Department's Title IX regulations, or
[[Page 41539]]
because the person has reported information, made a complaint,
testified, assisted, or participated or refused to participate in any
manner in an investigation, proceeding, or hearing under the
regulations, including in an informal resolution process under proposed
Sec. 106.44(k), in grievance procedures under proposed Sec. 106.45,
and if applicable proposed Sec. 106.46, and in any other appropriate
steps taken by a recipient under proposed Sec. 106.44(f)(6) in
response to sex discrimination.
Reasons: Retaliation generally. Although the current regulations do
not define the term ``retaliation,'' retaliatory conduct is prohibited
under the current regulations in Sec. 106.71. Retaliation was also
prohibited prior to the 2020 amendments, also in Sec. 106.71, which
had been included in the initial 1975 implementing regulations under
Title IX. This initial version of Sec. 106.71 incorporated the Title
VI regulations' procedural provisions, including Title VI's prohibition
on retaliation at Sec. 100.7(e). The Supreme Court has also recognized
Title IX's prohibition on retaliation, holding in Jackson that
retaliation against a person for complaining of sex discrimination is
``discrimination `on the basis of sex' '' in violation of Title IX. 544
U.S. at 173-74 (``Retaliation against a person because that person has
complained of sex discrimination . . . is discrimination `on the basis
of sex' because it is an intentional response to the nature of the
complaint: an allegation of sex discrimination.''). The Court also
explained that retaliation by an employee against a person who
complains of sex discrimination can be attributed to a recipient. See,
e.g., id. at 171-74 (considering the plaintiff's supervisors' negative
performance evaluations and the school board's decision to remove the
plaintiff as a coach to be conduct by the recipient for purposes of the
plaintiff's retaliation claim); id. at 183 (stating that retaliation
``is easily attributable to the funding recipient, and it is always--by
definition--intentional'').
The Department did not propose amending the Title IX regulations to
address retaliation more specifically in the 2018 NPRM. However, in
response to the 2018 NPRM, the Department received comments regarding
the prevalence of retaliation in the context of complaints of sexual
harassment. These comments stated that the existing protections against
retaliation were inadequate to protect participants in a recipient's
grievance procedures, and commenters urged the Department to adopt an
explicit prohibition on retaliation in its regulations implementing
Title IX. In response, the Department codified current Sec. 106.71 as
part of the 2020 amendments to explicitly prohibit retaliation, 85 FR
30535-38, and moved the incorporation of the remaining Title VI
procedural protections to current Sec. 106.81. The Department
explained in the preamble to the 2020 amendments that it added the
explicit prohibition on retaliation because otherwise ``reporting may
be chilled.'' Id. at 30536.
The Department now proposes separating the prohibition on
retaliation in current Sec. 106.71(a) into three distinct but related
provisions: a definition of ``retaliation'' in proposed Sec. 106.2, a
definition of ``peer retaliation'' in proposed Sec. 106.2, and a
prohibition on retaliation in proposed Sec. 106.71. The Department
proposes this revision to enhance clarity for recipients regarding
their obligations related to retaliation under Title IX, which may
differ from their obligations under other Federal statutes that also
prohibit retaliation. See, e.g., Peters v. Jenney, 327 F.3d 307, 320-21
(4th Cir. 2003) (stating that retaliation is prohibited under Title
VI); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002)
(stating that retaliation is prohibited under the ADA, the Age
Discrimination in Employment Act, and Title VII); Lozman v. City of
Riviera Beach, 138 S. Ct. 1945, 1949 (2018) (stating that retaliation
for exercising First Amendment rights is prohibited under 42 U.S.C.
1983); 42 U.S.C. 2000e-3(a) (prohibiting retaliation in employment
under Title VII).\14\ In order to ensure that the prohibition on
retaliation in the Department's Title IX regulations adequately
identifies retaliatory conduct prohibited by Title IX's statutory and
regulatory framework, the Department proposes defining ``retaliation''
and ``peer retaliation'' in proposed Sec. 106.2 in a manner that would
identify the scope of the retaliatory conduct under Title IX.
---------------------------------------------------------------------------
\14\ The regulations implementing each of the Federal civil
rights laws enforced by the Department contain prohibitions on
retaliation. 34 CFR 100.7(e) (Title VI); 34 CFR 104.61 (Section 504)
(incorporating 34 CFR 100.7(e) by reference); 34 CFR 108.9 (Boy
Scouts of America Equal Access Act) (incorporating 34 CFR 100.7(e)
by reference); 28 CFR 35.134 (Title II); 34 CFR 110.34 (Age
Discrimination Act of 1975). Although the Department's implementing
regulations for Section 504 and the Boy Scouts of America Equal
Access Act incorporate Title VI's prohibition on retaliation
wholesale, its implementing regulations for the Age Discrimination
Act and the Department of Justice's implementing regulations for
Title II include their own prohibitions on retaliation, which differ
from the Title VI regulation to address issues unique to those
statutes. See, e.g., 34 CFR 110.34 (expressly prohibiting
retaliation in mediation and conciliation processes, which are
required under the Age Discrimination Act).
---------------------------------------------------------------------------
Substantively, the proposed definitions of ``retaliation'' and
``peer retaliation'' in proposed Sec. 106.2 would encompass the same
conduct as current Sec. 106.71(a), but would clarify that such conduct
is retaliatory when undertaken against a student, employee, or third
party participating or attempting to participate in the recipient's
program or activity by a student, employee, or person authorized by the
recipient to provide aid, benefit, or service under the recipient's
education program or activity. This clarification would align with the
Department's proposed definitions of ``complainant'' and ``sex-based
harassment'' in Sec. 106.2, which also refer to students, employees,
or persons authorized by the recipient to provide aid, benefit, or
service under the recipient's education program or activity, or third
persons participating or attempting to participate in a recipient's
education program or activity.
In its proposed definitions of ``retaliation'' and ``peer
retaliation'' in Sec. 106.2, the Department would maintain the
requirement in current Sec. 106.71(a) that conduct that meets the
definition of ``retaliation'' is undertaken for the purpose of
interfering with a right or privilege under Title IX or because someone
participated or refused to participate in an investigation, proceeding,
or hearing under Title IX. Participating or refusing to participate in
a Title IX investigation, proceeding, or hearing includes an informal
resolution process under proposed Sec. 106.44(k), grievance procedures
under proposed Sec. 106.45, and if applicable proposed Sec. 106.46,
and any other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity under proposed Sec. 106.44(f)(6). The
Department proposes these changes after considering comments received
during the June 2021 Title IX Public Hearing and feedback received from
stakeholders during listening sessions that additional protections from
retaliation for those participating in grievance procedures are
necessary to ensure full protection from prohibited retaliation. The
Department does not intend, by specifying the proceedings just
described, to exclude other Title IX processes in the current or
proposed regulations.
Peer retaliation. In addition to the definition of ``retaliation,''
the Department proposes including a definition of ``peer retaliation''
in proposed Sec. 106.2. Although the
[[Page 41540]]
prohibition in current Sec. 106.71(a) applies to retaliation by a
recipient or other person against any individual, the regulations do
not specifically address retaliation by a student against another
student. In proposed Sec. 106.71(b), the Department would explicitly
state that a recipient has an obligation to prohibit and respond to
peer retaliation. In response to feedback received during the June 2021
Title IX Public Hearing highlighting the pervasiveness of peer
retaliation against those who participate in a recipient's grievance
procedures for sexual harassment, the Department proposes specifically
defining ``peer retaliation'' in proposed Sec. 106.2 to make clear
that it would be a form of retaliation under Title IX. Proposed Sec.
106.71(b) would clarify a recipient's responsibility to address peer
retaliation, and this responsibility is explained in greater detail in
the discussion of proposed Sec. 106.71. It is the Department's current
view that adding a specific definition of ``peer retaliation'' would
enhance clarity for both recipients and students regarding a
recipient's responsibility to respond to all forms of retaliatory
conduct. The Department proposes defining ``peer retaliation'' as
retaliation by and against students. The retaliatory conduct covered
under this proposed definition would be the same as the conduct set out
in the proposed definition of ``retaliation,'' but it would cover only
conduct engaged in by students against other students. For example, if
a student's locker is vandalized by his teammates because the student
complained to the administration that his high school is not providing
substantially proportional athletics participation opportunities for
girls, that conduct would constitute peer retaliation. Similarly, if a
student council president threatens to remove a student council member
from a student council committee close in time to the student council
member's participation as a witness in sex-based harassment grievance
procedures in which the student council president's friend is the
respondent, that conduct would constitute peer retaliation. As this
example shows, retaliation by the friends of a student party against
another party and conduct intended to threaten, punish, or deter a
student from participating in a Title IX process could constitute peer
retaliation. Peer retaliation can also constitute sex-based harassment
or other adverse actions that do not meet the definition of ``sex-based
harassment,'' but still meet the definition of ``retaliation'' in
proposed Sec. 106.2.
Section 106.71 Retaliation
Current regulations: Current Sec. 106.71(a) prohibits
intimidation, threats, coercion, or discrimination ``against any
individual for the purpose of interfering with any right or privilege
secured by title IX or this part, or because the individual has made a
report or complaint, testified, assisted, or participated or refused to
participate in any manner in an investigation, proceeding, or hearing
under this part.'' Current Sec. 106.71(a) further states that
intimidation, threats, coercion, or discrimination, including imposing
discipline for code of conduct violations, arising out of the same
facts or circumstances as a report or complaint of sex discrimination
is prohibited retaliation when it is done ``for the purpose of
interfering with an individual's Title IX rights.'' Under current Sec.
106.71(a), a recipient must keep confidential the identities of ``any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness,'' unless disclosure is permitted by FERPA,
required by law, or is made to carry out Title IX obligations. All
complaints alleging retaliation must be filed according to the
grievance procedures under current Sec. 106.8(c) for complaints of sex
discrimination.
Current Sec. 106.71(b) clarifies that two specific circumstances
do not constitute retaliation: the exercise of rights protected under
the First Amendment and charging an individual with a code of conduct
violation for making a materially false statement in bad faith during a
Title IX grievance proceeding. With respect to the latter circumstance,
current Sec. 106.71(b)(2) clarifies that a determination of
responsibility alone is not sufficient to conclude that any party made
a materially false statement in bad faith.
Proposed regulations: In proposed Sec. 106.71, the Department
would require that a recipient prohibit retaliation, as defined in
proposed Sec. 106.2, in its education program or activity. The
Department proposes moving the language describing the conduct that
constitutes retaliation from current Sec. 106.71(a) to new proposed
definitions of ``retaliation'' and ``peer retaliation'' in Sec. 106.2
and moving the prohibition in current Sec. 106.71(a) on recipients
disclosing the identities of those involved in the recipient's Title IX
process to proposed Sec. 106.44(j).
Proposed Sec. 106.71 would specify the recipient's obligation to
prohibit and address retaliation. Proposed Sec. 106.71 states that
when a recipient receives information about possible retaliation, it
would have to comply with proposed Sec. 106.44, and when a recipient
receives a complaint alleging retaliation, it would have to initiate
its grievance procedures under proposed Sec. 106.45. When a complaint
of retaliation is consolidated under proposed Sec. 106.45(e) with a
complaint of sex-based harassment involving a student complainant or
student respondent at a postsecondary institution, the Department
proposes that the grievance procedures for investigating and resolving
the consolidated complaint would have to comply with the requirements
of proposed Sec. Sec. 106.45 and 106.46.
Proposed Sec. 106.71 would identify two examples of prohibited
retaliation. Proposed Sec. 106.71(a) would prohibit a recipient from
initiating its disciplinary process against a person for a code of
conduct violation that does not involve sex discrimination but arises
out of the same facts and circumstances as a complaint or information
reported about possible sex discrimination, for the purpose of
interfering with the person's exercise of their Title IX rights. The
Department proposes removing the references to ``intimidation, threats,
coercion, or discrimination'' in current Sec. 106.71(a) because they
are duplicative of the definition of ``retaliation'' in proposed Sec.
106.2, and proposes replacing ``charges'' in current Sec. 106.71(a)
with ``initiating a disciplinary process'' in proposed Sec. 106.71(a).
The Department also proposes identifying peer retaliation in proposed
Sec. 106.71(b) as a form of retaliation a recipient would have to
prohibit and address. The Department also proposes limited changes to
current Sec. 106.71(a) for consistency and clarity in proposed Sec.
106.71(a).
Finally, the Department proposes changing ``individual'' to
``person'' throughout proposed Sec. 106.71 for consistency throughout
this section. This change also would better align this section with
other sections of the proposed regulations and the Title IX statute,
all of which use ``person.''
Reasons: The Department affirms that retaliation is a form of sex
discrimination prohibited by Title IX, Jackson, 544 U.S. at 173-74, and
that robust protection against retaliation is necessary to ensure
fulfillment of Title IX's requirement that a recipient operates its
education program or activity free from sex discrimination. The
Department agrees with the
[[Page 41541]]
Supreme Court that ``if recipients were permitted to retaliate freely,
individuals who witness [sex] discrimination would be loath to report
it and all manner of Title IX violations might go unremedied as a
result.'' Id. at 180. To fulfill Title IX's guarantee, and consistent
with the new definitions of ``retaliation'' and ``peer retaliation'' in
proposed Sec. 106.2, the Department proposes revising current Sec.
106.71 to ensure that a recipient would prohibit all forms of
retaliation in its education program or activity.
As explained in greater detail in the discussion of the proposed
definitions of ``retaliation'' and ``peer retaliation'' (proposed Sec.
106.2), the Department has consistently prohibited retaliation against
any person for the purpose of interfering with a right or privilege
under Title IX or for participating or refusing to participate in a
recipient's Title IX processes, including its grievance procedures.
Prior to the 2020 amendments, the Department prohibited retaliation by
incorporating the prohibition on retaliation from the procedural
protections in Sec. 100.7(e) of the Department's Title VI regulations.
As part of the 2020 amendments, the Department revised Sec. 106.71 to
expressly prohibit retaliation. The Title IX regulations have always
extended the prohibition on retaliation to all participants in a
recipient's Title IX processes, including complainants, respondents,
witnesses, and others participating in these processes, regardless of
whether the participant provided information or otherwise participated
in the process in support of the complainant, respondent, or the
recipient.
The Department notes that in DuBois v. Board of Regents of the
University of Minnesota, 987 F.3d 1199 (8th Cir. 2021), the U.S. Court
of Appeals for the Eighth Circuit stated that the Department's
regulations do not ``prohibit discrimination because of participation
in an investigation,'' in contrast to the Title VI regulations. Id. at
1205 (citing 34 CFR 100.7(e)). The Department also notes, however, that
in the 47 years since HEW first promulgated regulations under Title IX,
those regulations have always prohibited retaliation against
participants in Title IX processes and OCR has consistently relied on
this interpretation in its enforcement practice. See 45 CFR 86.71; see
U.S. Dep't of Educ., Office for Civil Rights, Case Resolutions
Regarding Sex Discrimination, https://www2.ed.gov/about/offices/list/ocr/frontpage/caseresolutions/sex-cr.html; see also U.S. Dep't of
Educ., Office for Civil Rights, Dear Colleague Letter: Retaliation at
1-2 (Apr. 24, 2013), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.pdf. Therefore, the Department does not follow
the Eighth Circuit's decision in enforcing the prohibition on
retaliation in current Sec. 106.71(a), or in proposing revisions to
Sec. 106.71(a).
Changes to current Sec. 106.71(a). The Department seeks to
restructure proposed Sec. 106.71 to clarify the prohibition on
retaliation and to move the language defining the term ``retaliation''
to proposed Sec. 106.2. The Department would also move the requirement
that a recipient keep confidential the identities of those involved in
Title IX processes from current Sec. 106.71(a) to proposed Sec.
106.44(j). The Department proposes moving this provision because, as
explained in the discussion of proposed Sec. 106.44(j), current Sec.
106.71(a)'s prohibition on the recipient's disclosure is not limited to
circumstances in which the disclosure would be retaliatory. This
prohibition would help ensure that persons involved in Title IX
processes are able to participate freely in the recipient's efforts to
address sex discrimination. To the extent that a recipient discloses
the identities of those involved in Title IX processes for the purpose
of interfering with a Title IX right, that disclosure would violate
proposed Sec. 106.44(j) and constitute retaliation under proposed
Sec. 106.71(a).
Proposed Sec. 106.71 would require a recipient to prohibit
retaliation, set out a recipient's required response to prohibited
retaliation, and identify two examples of common retaliatory conduct.
The Department proposes revising Sec. 106.71 to provide clarity
regarding a recipient's obligations to prohibit and respond to
retaliation, in response to concerns from stakeholders raised with OCR
during the June 2021 Title IX Public Hearing and in listening sessions,
that additional protections from retaliation for participants in Title
IX grievance procedures are necessary to ensure full protection from
prohibited retaliation.
Proposed Sec. 106.71. In view of the Department's continued
interest in ensuring full implementation of Title IX's prohibition on
retaliation, the Department proposes requiring a recipient to prohibit
retaliation against any person by students, employees, and other
persons authorized by the recipient to provide an aid, benefit, or
service to the recipient's education program or activity. In addition,
in proposed Sec. 106.71, the Department would specify the recipient's
obligation to address retaliation and set out the specific ways that a
recipient must address information regarding possible retaliation under
proposed Sec. 106.44 or a complaint of retaliation using its grievance
procedures under proposed Sec. 106.45.
Under proposed Sec. 106.71, all complaints alleging retaliation as
defined in proposed Sec. 106.2, including complaints alleging
retaliation that arise from the same facts or circumstances as a
complaint or information reported about possible sex discrimination,
would require the recipient to initiate its grievance procedures under
proposed Sec. 106.45. It bears noting that although retaliation may
arise in connection with sex-based harassment and some instances of
retaliation may also constitute sex-based harassment, retaliatory
conduct is not necessarily conduct that would constitute sex-based
harassment; instead, it is a distinct form of sex discrimination as
discussed above. Therefore, it is the Department's current position
that retaliation complaints may be made by any of the persons specified
in proposed Sec. 106.45(a)(2) as entitled to make a complaint of sex
discrimination, including: the complainant; anyone who has the right to
act on behalf of the complainant under proposed Sec. 106.6(g); the
Title IX Coordinator; or any student, employee, or third party who is
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred.
When a complaint alleging retaliation arises from the same facts or
circumstances as another complaint or information reported about
possible sex discrimination, such as when a person experiences
retaliation for participating in the recipient's grievance procedures
under Title IX, the recipient would be permitted to consolidate the
retaliation complaint with the other complaint of sex discrimination
under proposed Sec. 106.45(e). When the complaint of retaliation is
consolidated with a complaint of sex-based harassment involving a
student complainant or student respondent at a postsecondary
institution, the grievance procedures for the consolidated complaint
would be required to comply with proposed Sec. Sec. 106.45 and 106.46.
By providing a recipient the discretion to consolidate retaliation
complaints with complaints alleging other forms of sex discrimination,
the proposed regulations would allow the recipient to respond to
allegations of such retaliation more efficiently and effectively than
under the current regulations.
[[Page 41542]]
Proposed Sec. 106.71(a). The Department recognizes that a
recipient's use of its disciplinary process to interfere with the
ability of members of its community to exercise their rights under
Title IX is a form of retaliation. In view of this, the Department
proposes maintaining this portion of current Sec. 106.71(a),
clarifying the application of this portion of current Sec. 106.71(a),
and making limited edits for consistency with other provisions in the
proposed regulations.
Through the June 2021 Title IX Public Hearing, OCR received
feedback requesting that the Department find ways to ensure that a
recipient implements its grievance procedures in a manner that does not
intimidate those seeking to provide information regarding sex
discrimination or to participate fully in the recipient's grievance
procedures. Stakeholders stated that complainants who reported sex-
based harassment to their schools have been threatened with or faced
disciplinary sanctions for reporting sex-based harassment. These
stakeholders also expressed concern that retaliatory implementation of
a recipient's code of conduct would deter students from reporting sex-
based harassment and accessing supportive measures or other forms of
support that may be provided by the recipient. The Department shares
these concerns and proposes maintaining current Sec. 106.71(a) but
wishes to clarify the application of this provision.
In the preamble to the 2020 amendments, the Department explained
that ``[i]f a recipient always takes a zero tolerance approach to
underage drinking in its code of conduct and always imposes the same
punishment for underage drinking, irrespective of the circumstances,
then imposing such a punishment would not be `for the purpose of
interfering with any right or privilege secured by' Title IX or these
final regulations and thus would not constitute retaliation under these
final regulations.'' 85 FR 30536. After reweighing the facts and
circumstances, including but not limited to feedback from stakeholders
regarding the impact of such conduct on participation in the Title IX
process, the Department submits that it is appropriate to clarify its
interpretation of current Sec. 106.71(a). The Department recognizes
that when alleging that a recipient has engaged in retaliatory
enforcement of its code of conduct, a complainant will not typically
have access to the information necessary to definitively allege that
the recipient did not consistently implement its zero-tolerance
approach in order to demonstrate that enforcement of the code of
conduct was, in that instance, retaliatory. The Department's current
view is that the position taken in the preamble to the 2020 amendments
did not fully account for this imbalance in access to information.
Under these proposed regulations, a recipient that implements a zero-
tolerance approach would be required to comply with its obligations
under proposed Sec. 106.71(a). Moreover, as explained in greater
detail in the discussion of proposed Sec. 106.44(b), a recipient would
have to ensure that, through its Title IX Coordinator, it is monitoring
potential barriers to those seeking to provide information regarding
conduct that may constitute sex discrimination under Title IX,
including retaliation.
The Department also proposes a nonsubstantive change to the
regulatory text for proposed Sec. 106.71(a) to replace ``charges''
with ``initiating a disciplinary process.''
Proposed Sec. 106.71(b). The Department proposes explicitly
identifying peer retaliation as prohibited retaliatory conduct in
proposed Sec. 106.71(b) to ensure that a recipient prohibits and
addresses any conduct that meets the definition of ``peer retaliation''
in proposed Sec. 106.2.
The Department's 2018 NPRM did not propose amending the Title IX
regulations to specifically address peer retaliation or retaliation
more generally, as discussed above. Commenters on the 2018 NPRM,
recognizing that the Title IX regulations have long prohibited
retaliation, sought clarity about the standards that would apply to a
recipient's obligation to respond to a complaint of peer retaliation
and, in particular, whether the Department's proposed requirement of
actual knowledge and proposed deliberate indifference standard for a
recipient's response to sexual harassment would apply to retaliation as
well. 85 FR 30277, 30535. In response to these comments, the Department
declined to apply an actual knowledge requirement to retaliation,
explaining in the preamble to the 2020 amendments that the ``actual
knowledge requirement in [the current regulations] applies to sexual
harassment and does not apply to a claim of retaliation'' because ``the
Supreme Court has not applied an actual knowledge requirement to a
claim of retaliation,'' unlike with respect to sexual harassment, as
set out in Gebser and Davis. Id. at 30537. The Department amended Sec.
106.71 to explicitly prohibit retaliation without adding language
regarding a recipient's obligation to respond to information about peer
retaliation in its education program or activity.
OCR received feedback from stakeholders during listening sessions
and through the June 2021 Title IX Public Hearing requesting that the
Department review the 2020 amendments and take further steps to address
a recipient's obligation to respond to peer retaliation. Stakeholders
stated that peer retaliation continues to be a problem that chills
reporting for potential complainants and affects both complainants and
respondents going through a recipient's grievance procedures. These
stakeholders requested that the Department strengthen its anti-
retaliation protections and ensure that recipients address peer
retaliation beyond the steps taken in the 2020 amendments.
The Department notes that courts have recognized that a recipient
has a responsibility to address peer retaliation. See Hurley, 911 F.3d
at 695 (``[A]n educational institution can be liable for acting with
deliberate indifference toward known instances of student-on-student
retaliatory harassment.''); Doe v. Sch. Dist. No. 1, 970 F.3d 1300,
1311 (10th Cir. 2020) (holding that peer retaliation for reporting a
sexual assault is a form of retaliation to which a school must
respond).\15\ In these cases, the courts recognize that a recipient
must address peer retaliation under Title IX as a form of prohibited
retaliation consistent with Jackson.
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\15\ The Department views the case law as instructive for
explaining that a recipient has an obligation to respond to peer
retaliation. At the same time, as explained in the discussion of
OCR's Guidance and Supreme Court Precedent on Title IX's Application
to Sexual Harassment (Section II.B.1), the Department recognizes
that its administrative enforcement of Title IX differs in
significant ways from private lawsuits for monetary damages and
proposes that the applicable standards for a recipient's response to
peer retaliation in the administrative enforcement context should
likewise differ from those imposed by courts in private litigation.
In particular, as explained in the discussion of proposed Sec.
106.44(a), the Department's role in implementing Title IX is to
ensure that a recipient complies with its legal duty to operate its
education program or activity free from sex discrimination,
including retaliation against a student for seeking to enforce their
right to be free from sex discrimination in the recipient's
education program or activity.
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The Department is aware that some courts have recognized a
recipient's obligation to respond to retaliatory peer harassment as
part of its obligation to respond to sex-based harassment. See, e.g.,
Doe v. Ohio Univ., No. 2:21-cv-858, 2022 WL 899687, *5 (S.D. Ohio Mar.
28, 2022). It is the Department's current view that Title IX requires
the recipient to address this conduct whether it constitutes sex-based
harassment or peer retaliation. See Hurley, 911 F.3d at 696 (holding
that the
[[Page 41543]]
plaintiffs may assert separate claims for both retaliation and sexual
harassment against the university based on the same underlying facts).
After considering recent case law as well as the feedback received
following the implementation of the 2020 amendments, it is the
Department's current position that, to fully implement Title IX, the
proposed regulations must require recipients to address sex
discrimination in the form of peer retaliation. The Department also
recognizes that the 2020 amendments did not specify the steps a
recipient must take in response to peer retaliation, and that this lack
of specificity may cause confusion for recipients and others.
Therefore, the Department proposes specifically requiring a recipient
to address information about possible peer retaliation consistent with
its obligation to address conduct that may constitute sex
discrimination under proposed Sec. 106.44.
The Department notes that the items described in proposed Sec.
106.71 as examples of prohibited retaliation do not represent an
exhaustive list. For example, in connection with the June 2021 Title IX
Public Hearing and during listening sessions with stakeholders, OCR
heard from individuals who identified instances in which respondents or
others made complaints accusing a complainant of sex-based harassment
for the purpose of intimidating a complainant or coercing a complainant
to withdraw the complainant's original complaint of sex-based
harassment. If a complainant alleges that another person made a
complaint in retaliation for their original complaint, the recipient
would be required to determine whether that other person's complaint
constituted prohibited retaliation under proposed Sec. 106.71.
The Department also recognizes that a recipient may be engaging in
prohibited retaliation when it disciplines an individual for discussing
conduct that would constitute sex discrimination under Title IX if the
recipient takes that disciplinary action for the purpose of retaliating
against the individual rather than for another reason, such as taking
reasonable steps to protect the privacy of parties, witnesses, and
others participating in the recipient's grievance procedures in
proposed Sec. 106.45(b)(5). OCR received comments during the June 2021
Title IX Public Hearing requesting clarification that discipline for
engaging in these discussions is prohibited. Whether this action
constitutes retaliation would be a fact-specific inquiry to determine
whether the recipient disciplined the individual for the purpose of
interfering with that individual's Title IX rights.
Removal of current Sec. 106.71(b). The Department proposes
removing current Sec. 106.71(b)(1) as redundant because of the
protections afforded in current Sec. 106.6(d)(1). The Department
stated in the preamble to the 2020 amendments that it added current
Sec. 106.71(b)(1) to address concerns that anti-retaliation efforts,
when applied erroneously, may affect speech protected under the First
Amendment. Id. at 30537. As explained in the discussion of the
definition of prohibited ``sex-based harassment'' (proposed Sec.
106.2), the Department has long made clear that it enforces Title IX
consistent with the requirements of the First Amendment. The Department
has explained that the Department's ``regulations and policies do not
require or prescribe speech, conduct or harassment codes that impair
the exercise of rights protected under the First Amendment.'' 2003
First Amendment Dear Colleague Letter. In addition, current Sec.
106.6(d)(1) states that nothing in the regulations requires a recipient
to ``restrict any rights that would otherwise be protected from
government action by the First Amendment of the U.S. Constitution.''
Therefore, the Department submits that current Sec. 106.71(b)(1) is
redundant and its removal would be appropriate.
VI. Outdated Regulatory Provisions
Section 106.3(c) and (d) Self-Evaluation
Current regulations: Section 106.3(c) required that each recipient
educational institution, within one year of the effective date of the
original regulations, conduct a self-evaluation of its policies and
practices and make modifications as necessary to comply with the
regulations. Current Sec. 106.3(d) required the recipient to maintain
records of the self-evaluation for three years.
Proposed regulations: The Department proposes removing these
paragraphs in their entirety.
Reasons: These provisions described requirements that expired in
June 1979. The Department proposes to remove these provisions because
they are no longer operative.
Sections 106.16 and 106.17 Transition Plans
Current regulations: Section 106.16 required certain educational
institutions that had admitted students of only one sex prior to the
passage of Title IX to carry out a transition plan described in current
Sec. 106.17.
Proposed regulations: The Department proposes removing these
provisions from the regulations in their entirety.
Reasons: These provisions described the process for certain
educational institutions to submit transition plans to convert their
single-sex admissions processes to nondiscriminatory processes before
June 1979. The Department proposes to remove these provisions because
they are no longer operative.
Section 106.2(s) Definition of ``Transition Plan''
Current regulations: Section 106.2(s) defines the term ``transition
plan,'' which is used in current Sec. Sec. 106.16 and 106.17.
Proposed regulations: The Department proposes removing this
definition from Sec. 106.2.
Reasons: The term ``transition plan'' is used in provisions that
the Department proposes to remove because they are no longer operative.
Section 106.15(b) Admissions
Current regulations: Section 106.15(b) provides that, for purposes
of Sec. Sec. 106.15, 106.16, and 106.17, and subpart C, each
administratively separate unit shall be deemed to be an educational
institution.
Proposed regulations: The Department proposes removing the
reference to Sec. Sec. 106.16 and 106.17.
Reasons: The Department proposes removing current Sec. Sec. 106.16
and 106.17 in their entirety, which makes the references to those
sections in Sec. 106.15(b) moot.
Section 106.21(a) Admission
Current regulations: Section 106.21(a) provides that no person
shall, on the basis of sex, be denied admission, or be subjected to
discrimination in admission, by any recipient to which this subpart
applies, except as provided in Sec. Sec. 106.16 and 106.17.
Proposed regulations: The Department proposes removing the
reference to Sec. Sec. 106.16 and 106.17.
Reasons: The Department proposes removing current Sec. Sec. 106.16
and 106.17 in their entirety, which makes the references to those
sections in Sec. 106.21(a) moot.
Section 106.41(d) Adjustment Period
Current regulations: Section 106.41(d) specified the timeframe for
recipients to come into compliance with the Title IX regulations after
they were originally issued in 1975.
Proposed regulations: The Department proposes removing this
subsection of the regulations in its entirety.
Reasons: This provision required recipients to come into compliance
with
[[Page 41544]]
Sec. 106.41 no later than June 1978. The Department proposes to remove
this provision because it is no longer operative.
VII. Directed Questions
The Department invites you to submit comments on all aspects of the
proposed regulations, as well as the Regulatory Impact Analysis. The
Department is particularly interested in comments on questions posed
throughout the Preamble, which are collected here for the convenience
of commenters, with a reference to the section in which they appear.
The Department is also interested in comments on questions posed in the
Regulatory Impact Analysis.
1. Interaction with Family Educational Rights and Privacy Act
(FERPA) (proposed Sec. 106.6(e)) Some aspects of the proposed
regulations address areas in which recipients may also have obligations
under FERPA, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR
part 99, including, for example, provisions regarding the exercise of
rights by parents, guardians, or other authorized legal representatives
at proposed Sec. 106.6(g); disclosure of supportive measures at
proposed Sec. 106.44(g)(5); consolidation of complaints at proposed
Sec. 106.45(e); description of the relevant evidence at proposed Sec.
106.45(f)(4); access to an investigative report or relevant and not
otherwise impermissible evidence at proposed Sec. 106.46(e)(6); and
notification of the determination of a sex discrimination complaint at
proposed Sec. Sec. 106.45(h)(2) and 106.46(h)(1). The Department is
seeking comments on the intersection between the proposed Title IX
regulations and FERPA, any challenges that recipients may face as a
result of the intersection between the two laws, and any steps the
Department might take to address those challenges in the Title IX
regulations.
2. Recipient's Obligation To Provide an Educational Environment Free
From Sex Discrimination (Proposed Sec. Sec. 106.44-106.46)
The proposed regulations at Sec. Sec. 106.44, 106.45, and 106.46
clarify the obligation of a recipient to respond promptly and
effectively to information and complaints about sex discrimination in
its education program or activity in a way that ensures full
implementation of Title IX. The Department invites comments on whether
there are additional requirements that should be included in, or
removed from, the current and proposed regulations to assist recipients
in meeting their obligation under Title IX to provide an educational
environment free from discrimination based on sex. The Department also
seeks comment on whether and how any of the proposed grievance
procedures (or any proposed additions from commenters) should apply
differently to various subgroups of complainants or respondents, such
as students or employees, or students at varying educational levels.
3. Single Investigator (Proposed Sec. 106.45(b)(2))
The Department is aware that, prior to August 2020, some recipients
used a single investigator or team of investigators to investigate
complaints of sex-based harassment and make determinations whether sex-
based harassment occurred. The Department invites comments on
recipients' experiences using that model to comply with Title IX and
the steps taken, if any, to ensure adequate, reliable, and impartial
investigation and resolution of complaints, including equitable
treatment of the parties and reliable grievance procedures that are
free from bias. The Department also invites comments on these issues
from persons who were parties or served as an advisor to a party to a
complaint that was investigated and resolved by a recipient using a
single investigator model.
4. Standard of Proof (Proposed Sec. 106.45(h)(1))
a. To the extent commenters take the position that the clear and
convincing standard would be appropriate when used in all other
comparable proceedings, the Department invites comments on steps that
recipients implementing that standard have taken to ensure equitable
treatment between the parties.
b. The Department invites comments on whether it is appropriate to
allow a recipient to use a different standard of proof in employee-on-
employee sex discrimination complaints, than it uses in sex
discrimination complaints involving a student.
c. The Department invites comments on whether it would be
appropriate to mandate the use of only one standard of proof for sex
discrimination complaints.
Regulatory Impact Analysis (RIA)
Under Executive Order 12866,\16\ the Office of Management and
Budget (OMB) must determine whether this regulatory action is
``significant'' and, therefore, subject to the requirements of the
Executive Order and subject to review by OMB. Section 3(f) of Executive
Order 12866 defines a ``significant regulatory action'' as an action
likely to result in regulations that may--
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\16\ Executive Order on Regulatory Planning and Review, Exec.
Order. No. 12866, 58 FR 51735 (Oct. 4, 1993), https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf.
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(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive Order.
This proposed action is ``significant'' and therefore subject to
review by OMB under section 3(f)(4) of this Executive Order because it
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
Order.
The Department has also reviewed the proposed regulations under
Executive Order 13563,\17\ which supplements and explicitly reaffirms
the principles, structures, and definitions governing regulatory review
established in Executive Order 12866. To the extent permitted by law,
Executive Order 13563 requires that an agency--
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\17\ Executive Order on Improving Regulation and Regulatory
Review, Exec. Order No. 13563, 76 FR 3821 (Jan. 18, 2011), https://www.govinfo.gov/content/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
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(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
[[Page 41545]]
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
Under Executive Order 13563, the Department believes that the
benefits of these proposed regulations justify their costs. In choosing
among alternative regulatory approaches, the Department selected those
approaches that maximize net benefits. Based on the analysis that
follows, the Department believes that the proposed regulations are
consistent with the principles in Executive Order 13563.
The Department has also preliminarily determined that this
regulatory action would not unduly interfere with State, local, or
Tribal governments in the exercise of their governmental functions.
This RIA discusses the need for regulatory action, the potential
costs and benefits, assumptions, limitations, and data sources, as well
as regulatory alternatives considered. Although most of the costs
related to information collection are discussed within this RIA, under
Paperwork Reduction Act of 1995, this notice also identifies and
further explains burdens specifically associated with information
collection requirements.
1. Need for Regulatory Action
In 2021, the President directed the Department in both Executive
Order 13988 \18\ and Executive Order 14021 \19\ to review its current
regulations implementing Title IX for consistency with Title IX's
statutory prohibition on sex discrimination by a recipient of Federal
financial assistance in its education program or activity. Consistent
with those Executive Orders, the Department reviewed the current
regulations based on Federal case law under Title IX, its experience in
enforcement, and feedback received by OCR from stakeholders during the
June 2021 Title IX Public Hearing,\20\ listening sessions, and the
meetings held in 2022 under Executive Order 12866. Over 280 students,
parents, teachers, faculty members, school staff, administrators, and
other members of the public provided live comments during the June 2021
Title IX Public Hearing, and OCR also received over 30,000 written
comments \21\ in connection with the hearing. In addition, a wide
variety of stakeholders participated in the listening sessions with
OCR, including survivors of sexual violence, students accused of sexual
misconduct, LGBTQI+ students, and advocates representing these groups
of students; organizations focused on Title IX and athletics;
organizations focused on free speech and due process; organizations
representing elementary schools and secondary schools (or local
educational agencies (LEAs)), as well as postsecondary institutions (or
institutions of higher education (IHEs)), teachers, administrators, and
parents; attorneys representing survivors, accused students, and
schools; State attorneys general offices; Title IX Coordinators and
other school administrators; individuals who provide training on Title
IX to schools; individuals who work in campus law enforcement; and
individuals who have participated in school-level Title IX proceedings.
The meetings under Executive Order 12866 in 2022 included individuals
and representatives of the same types of groups, organizations, and
offices as those who participated in the listening sessions with OCR.
Based on this review, the Department proposes amending its regulations
to ensure that all aspects of its regulatory framework under Title IX
are well-suited to implementing Title IX's prohibition on sex
discrimination in education programs or activities that receive Federal
financial assistance. The Department also proposes amendments intended
to improve and promote educational environments free of sex
discrimination in a manner that recognizes fairness and safety
concerns.
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\18\ Executive Order on Preventing and Combating Discrimination
on the Basis of Gender Identity or Sexual Orientation, Exec. Order
No. 13988, 86 FR 7023 (Jan. 25, 2021), https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf.
\19\ Executive Order on Guaranteeing an Educational Environment
Free from Discrimination on the Basis of Sex, Including Sexual
Orientation and Gender Identity, Exec. Order No. 14021, 86 FR 13803
(Mar. 11, 2021), https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf.
\20\ The transcript from the June 2021 Title IX Public Hearing
is available at https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf.
\21\ The written comments that OCR received as part of the June
2021 Title IX Public Hearing are available at https://www2.ed.gov/about/offices/list/ocr/public-hearing.html.
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Among the considerations was feedback received from many
stakeholders during the June 2021 Title IX Public Hearing, listening
sessions, and meetings held under Executive Order 12866, stating that
the current regulations include onerous requirements for sexual
harassment grievance procedures that are unnecessarily adversarial in
nature--potentially resulting in a decrease in students' willingness to
file complaints or fully participate in the grievance process. These
stakeholders also stated that the current requirements for sexual
harassment grievance procedures unduly increase administrative burden
and intrude on a recipient's professional judgment and expertise
regarding how best to respond to allegations of student misconduct
without improving the recipient's ability to address sex discrimination
within their education environments. During the June 2021 Title IX
Public Hearing, some stakeholders expressed support for the current
regulations, remarking that the requirements governing a recipient's
sexual harassment grievance procedures should remain in place without
change, while other stakeholders suggested the Department amend various
provisions in the regulations that they deemed important (including the
deliberate indifference standard, the actual knowledge requirement, and
specific requirements related to grievance procedures for formal
complaints of sexual harassment). Many stakeholders expressed concerns
regarding the scope of the current regulatory definition of ``sexual
harassment,'' the requirement that a recipient need only respond to
sexual harassment when it has actual knowledge, and that it need only
respond in a manner that is not deliberately indifferent. Apart from
addressing sexual harassment, many stakeholders asked the Department to
clarify protections related to discrimination based on sexual
orientation and gender identity, presenting a variety of positions that
they urged the Department to adopt, while other stakeholders asked the
Department to clarify Title IX's protections against discrimination
based on pregnancy or related conditions.
The Department proposes amending its Title IX regulations to
address the concerns raised by stakeholders and anticipates that the
proposed regulations would result in many benefits to recipients,
students, employees, and others, including by:
Requiring recipients to adopt grievance procedures that
provide for the prompt and equitable resolution of complaints of sex
discrimination and
[[Page 41546]]
take other necessary steps to provide an educational environment free
from sex discrimination;
Clarifying the Department's view of the scope of Title
IX's prohibition on sex discrimination, including related to a hostile
environment under the recipient's education program or activity, as
well as discrimination on the basis of sex stereotypes, sex
characteristics, sexual orientation, pregnancy or related conditions,
and gender identity;
Clarifying a recipient's obligations to students and
employees who are pregnant or experiencing pregnancy-related
conditions.
As discussed in more detail in the following sections, it is the
Department's belief that the proposed regulatory changes will fulfill
Title IX's overarching goal: to ensure that no person experiences sex
discrimination in education. To that end, the Department aims to ensure
that all recipients can implement Title IX's nondiscrimination mandate
fully and fairly in their educational environments.
2. Discussion of Costs, Benefits, and Transfers
The Department has analyzed the costs and benefits of complying
with the proposed regulations. Although many of the associated costs
and benefits are not easily quantifiable, the Department currently
believes that the benefits derived from the proposed regulations
outweigh the associated costs given that the objectives of the
rulemaking are to ensure: (1) that sex discrimination does not take
place in any education program or activity receiving Federal financial
assistance, and (2) that sex discrimination is redressed promptly and
effectively if it occurs.
Title IX, which applies to approximately 18,000 LEAs, over 6,000
IHEs, and numerous other recipients such as libraries and museums,
requires a recipient to provide an education program or activity that
is free from sex discrimination. The proposed regulations would
introduce new obligations and clarify existing obligations of entities
subject to the regulations in order to promote an educational
environment free from sex discrimination. The Department expects that
the proposed regulations would benefit recipients, as well as students,
employees, and others by ensuring that students, employees, and others
understand their rights and recipients understand their
responsibilities under Title IX; clarifying the scope and application
of Title IX including but not limited to the obligation of recipients
to address all forms of sex discrimination; ensuring that supportive
measures will be provided, as appropriate, to a complainant and
respondent to restore or preserve that party's access to the
recipient's education program or activity; clarifying that remedies are
available, as appropriate, to anyone subjected to sex discrimination
while participating in or attempting to participate in a recipient's
education program or activity; requiring recipients to provide training
for employees regarding their obligations under Title IX; revising the
requirements for grievance procedures to provide for the prompt and
equitable resolution of complaints of any form of sex discrimination;
allowing a recipient the ability to adapt its grievance procedures to
its size, population served, and administrative structure while
ensuring equitable treatment of all parties; clarifying the
responsibilities of Title IX Coordinators; and ensuring
nondiscriminatory access to a recipient's education program or activity
for students and employees who are pregnant or experiencing related
conditions. The Department believes that the proposed regulations would
provide numerous important benefits and also recognizes that it is not
able to quantify each of these benefits at this time. Still, it is the
Department's tentative view that the proposed changes just described,
in addition to others discussed more fully throughout the RIA, would
reduce the occurrence of sex discrimination in a recipient's education
program or activity and facilitate a prompt and equitable resolution
when sex discrimination occurs, thereby supporting a recipient's
efforts to provide an educational environment free from sex
discrimination. Although there are limited data quantifying the
economic impacts of sex discrimination, including sex-based harassment,
on individuals, studies suggest that there is a cost associated with
being subjected to sex discrimination. See, e.g., Centers for Disease
Control and Prevention, Fast Facts: Preventing Sexual Violence, https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html (last
visited June 16, 2022) (describing the economic burden of sexual
violence involving physical contact on victims within their lifetimes);
Cora Peterson et al., Lifetime Economic Burden of Intimate Partner
Violence Among U.S. Adults, 55 Am. J. Preventive Med. 433 (2018)
(estimating the cost of intimate partner violence on victims within
their lifetimes). The Department recognizes that sex discrimination in
all forms, including sex-based harassment and prohibited retaliation,
may have both qualitative and quantitative costs for educational
institutions, their students and employees, applicants for admission
and employment, their families, and the American educational system and
workforce in general, although the Department is unable to quantify
reductions in these costs resulting from the proposed regulations.
Due to the large number of affected recipients (over 24,000, as
discussed more fully in the discussion of Developing the Model (Section
4.B)), the variation in likely responses to any regulatory change, and
the limited information available about current practices, particularly
at the LEA level, the Department is not able to precisely estimate the
likely costs, benefits, and other effects of the proposed regulations.
The Department specifically invites comment on data sources that would
provide comprehensive information regarding current practices used in
providing an educational environment free from sex discrimination as
required by Title IX, information regarding the number of recipients in
each group described in the discussion of Developing the Model (Section
4.B), and time estimates for the activities described in the discussion
of Cost Estimates (Section 4.C) disaggregated by type of recipient.
Despite these limitations and based on the best available evidence as
explained in the discussion of Establishing a Baseline (Section 4.A),
the Department estimates that the regulations would result in a
discounted net cost savings to recipients of between $9.8 million to
$28.2 million over ten years. These estimated cost savings arise
largely from the additional flexibility that recipients would have to
design and implement grievance procedures consistent with Title IX
under proposed Sec. 106.45, and if applicable proposed Sec. 106.46.
The assumptions, data, methodology, and other relevant materials,
as applicable, on which the Department relied in developing its
estimates are described throughout this RIA.
3. Benefits of the Proposed Regulations
The Department submits that this proposed regulatory action would
address the potential gaps in coverage within the current regulatory
framework that have been raised by stakeholders and observed by the
Department, including but not limited to areas such as the steps a
recipient must take with respect to sex discrimination, the
requirements for a recipient's grievance procedures for sex
discrimination other than sexual harassment, a recipient's
[[Page 41547]]
obligations toward students and employees who are pregnant or
experiencing related conditions, the scope of coverage related to
discrimination based on gender identity and sexual orientation, and a
recipient's obligation to address prohibited retaliation.
Although the Department cannot quantify in monetary terms the
ancillary benefits the proposed regulations may provide to those who
have been subjected to sex discrimination in an educational setting,
the Department recognizes that sex discrimination, including sex-based
harassment, can have profound and long-lasting economic costs for
students, employees, their families, and others who seek to participate
in the recipient's education program or activity. Being subjected to
sex discrimination in a recipient's program or activity can affect an
applicant's opportunity to enroll in a recipient's education program or
activity, a student's ability to learn and thrive in and outside of the
classroom, a prospective or current employee's ability to contribute
their talents to the recipient's educational mission, and the
opportunity of all participants to benefit, on an equal basis, from the
recipient's education program or activity. Likewise, barriers to
reporting sex discrimination within a recipient's program or activity
could undermine the recipient's education environment for the entire
community. The Department believes that the proposed regulations would
offer a clear and fair framework for fulfilling Title IX's prohibition
on sex discrimination in any education program or activity receiving
Federal financial assistance.
The Department's current view is that the proposed regulations
would reduce the long-term costs associated with providing an
educational environment free from sex discrimination, thereby producing
a demonstrable benefit for students, employees, and others
participating or attempting to participate in the recipient's education
program or activity. The Department anticipates those benefits would be
realized based on several proposed changes to the current regulations.
First, the proposed regulations would clarify the scope of Title IX's
protection from sex discrimination for students and others
participating or attempting to participate in a federally funded
education program or activity and define terms integral to a
recipient's obligations under Title IX. Second, the proposed
regulations would set out the contours of a recipient's obligation to
take action to address all forms of sex discrimination, including
requiring a recipient's Title IX Coordinator to monitor its education
program or activity for barriers to reporting sex discrimination and
requiring the recipient to take steps reasonably calculated to address
those barriers. Third, the proposed regulations would modify and
strengthen existing training requirements by specifying the range of
relevant persons that a recipient must train regarding the recipient's
obligations under Title IX. Fourth, the proposed regulations would
revise the notification requirements for a recipient, ensuring that
specific employees notify the Title IX Coordinator when they have
information about conduct that may constitute sex discrimination under
Title IX in the recipient's education program or activity. Fifth, the
proposed regulations would ensure the effective provision and
implementation of supportive measures, as appropriate, to all
complainants or respondents and clarify that when a recipient
determines that sex discrimination has occurred, the recipient must
provide remedies, as appropriate, to a complainant or any person the
recipient identifies as having their equal access to the recipient's
education program or activity limited or denied by sex discrimination,
and take other appropriate prompt and effective steps to ensure that
sex discrimination does not continue or recur within the recipient's
education program or activity. Sixth, the proposed regulations would
revise the requirements for grievance procedures to provide for the
prompt and equitable resolution of complaints of any form of sex
discrimination and allow a recipient the ability to adapt its grievance
procedures to its size, population served, and administrative structure
while ensuring equitable treatment of all parties. Finally, the
proposed regulations would provide clarity on the rights of students
and employees who are pregnant or experiencing related conditions
including, for example, by requiring a recipient to inform students of
the recipient's obligations, providing students with the option of
reasonable modifications necessary to prevent discrimination and to
ensure equal access to its education program or activity, requiring a
recipient to provide employees with reasonable break time to express
breast milk or breastfeed as needed and, with respect to both students
and employees, ensuring the availability of an appropriate space for
lactation.
The Department expects that the proposed regulations, when reviewed
in their totality, would reduce the likelihood of sex discrimination
and the overall prevalence of sex discrimination in recipients'
educational settings. Although the Department cannot, at this time,
entirely quantify the economic impacts of these benefits, the
Department believes that the benefits are substantial and far outweigh
the estimated costs of the proposed regulations.
4. Costs of the Proposed Regulations
The Department's analysis reviews the Department's data sources,
describes the model used for estimating the likely costs associated
with the proposed regulations, and sets out those estimated costs. Due
to limited quantitative data, the Department emphasizes that the
monetary estimates reflect only the likely costs of this regulatory
action for recipients and do not seek to quantify, in monetary terms,
the costs of sex discrimination, including sex-based harassment and
prohibited retaliation.
As described in the Discussion of Costs, Benefits, and Transfers
(Section 2), there are limited data quantifying the economic impacts of
sex discrimination, including sex-based harassment, on individuals, and
studies suggest that there is a cost associated with being subjected to
sex discrimination. See Centers for Disease Control and Prevention,
Fast Facts: Preventing Sexual Violence; Peterson et al., Lifetime
Economic Burden of Intimate Partner Violence Among U.S. Adults, 55 Am.
J. Preventive Med. 433. Nonetheless, the Department believes that the
proposed regulations would reduce the harms of sex discrimination in
multiple ways.
First, proposed Sec. 106.44 would clarify a recipient's obligation
to take action to end all forms of sex discrimination, including sex-
based harassment, expressly covering more forms of conduct than current
Sec. 106.44. Specifically, the proposed regulations would require a
recipient to take prompt and effective action to end any sex
discrimination that has occurred in its program or activity, prevent
its recurrence, and remedy its effects, regardless of whether a
complaint is made. Current Sec. 106.44 prescribes only how a recipient
must respond to allegations of sexual harassment in its education
program or activity when a report is made to certain employees; the
current regulations at Sec. 106.44 are silent with respect to a
recipient's obligation to respond to other forms of sex discrimination.
By prescribing the actions a recipient must take to operate its
education program or activity free from sex discrimination, the
Department's current view is that the proposed changes would aid the
[[Page 41548]]
recipient in reducing--and ultimately eliminating-- all forms of sex
discrimination in its education program or activity. Any initial,
short-term costs associated with the proposed change are expected to be
both minimal and offset in the longer term by reduced incidence of sex
discrimination. The Department submits that the proposed requirements
would increase recipient responsiveness to all reports and complaints
of sex discrimination and are also likely to deter or prevent some
incidents of sex-based harassment and its associated harms; however,
the Department cannot quantify the potential reduction in incidents of
sex-based harassment or other forms of discrimination.
Second, proposed Sec. 106.44(g) would make clear that upon being
notified of conduct that may constitute sex discrimination under Title
IX, including sex-based harassment and prohibited retaliation, a Title
IX Coordinator must offer supportive measures, as appropriate, to the
complainant or respondent to the extent necessary to restore or
preserve that party's access to the recipient's education program or
activity. Proposed Sec. 106.44(g) would also clarify that for
allegations of sex discrimination other than sex-based harassment or
retaliation, a recipient's provision of supportive measures would not
require the recipient, its employee, or other person authorized to
provide aid, benefit, or service on the recipient's behalf to alter the
conduct that is alleged to be sex discrimination for the purpose of
providing a supportive measure. As the proposed requirement regarding
supportive measures would cover prohibited retaliation as well as other
forms of sex discrimination not currently addressed by the current
regulations, the Department recognizes that the number of incidents in
which the parties would be provided supportive measures would likely
increase compared to the current regulations, as would any related
costs in providing those supportive measures. The Department estimates
that this provision would incur a negligible monetary cost per incident
and that the cumulative annual costs to the recipient would therefore
be at a de minimis level. The Department also anticipates that these
costs will either be reduced in the long-term or be offset by other
savings. Those savings may come from other proposed changes (e.g.,
changes to the grievance procedure requirements) or from the
anticipated reduction in instances of sex discrimination.
The Department expects that the proposed regulations would increase
the use of a recipient's grievance procedures by students and others,
thereby resulting in an increase in the prompt and equitable resolution
of complaints of sex discrimination in a recipient's program or
activity. If this assumption is correct, it is also reasonable to
believe that the proposed regulations may reduce the prevalence of sex
discrimination, including sex-based harassment, as well as the adverse
academic, social, emotional, and economic effects of sex discrimination
on individuals and recipient communities. Again, the Department
recognizes that it does not currently have data to form a reliable
estimate of these effects as related to associated costs and requests
comment on the extent to which implementation costs would be offset by
such effects and how both the costs and long-term benefits may be
reliably estimated, including any evidence that may be used to inform
such estimates.
4.A. Establishing a Baseline
4.A.1. Data Sources
As discussed in the preamble to the Department's 2020 amendments to
its Title IX regulations, the primary challenge associated with
estimating the effects of any new regulatory action under Title IX is
the lack of comprehensive data on the actions recipients are taking to
comply with their current obligations. As part of the comment process
on the 2020 amendments, the Department requested information about data
sources that would provide this information and which the Department
could use to inform its estimates. The Department did not receive such
sources at that time and again requests comment to help identify high
quality data sources on the actions currently being taken by recipients
to comply with Title IX.
In the absence of a recent, high quality, and comprehensive data
source, the Department relies, as it did for the 2020 amendments, on a
2014 report titled Sexual Violence on Campus (2014 Senate Subcommittee
Report) issued by the U.S. Senate Subcommittee on Financial and
Contracting Oversight.\22\ The report included survey data from 440
four-year IHEs regarding the number of investigations of sexual
violence that had been conducted during the previous five-year period;
however, this report did not address the prevalence of other forms of
sex discrimination, including discrimination on the basis of sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity. As described in the discussion
of Estimates of Annual Investigations of Sexual Harassment Prior to the
2020 Amendments to the Title IX Regulations (Section 4.A.2), the
Department adjusted these data to account for these exclusions. For
LEAs, the Department continues to rely on the most recent publicly
available data from OCR's Civil Rights Data Collection (CRDC) regarding
sexual harassment incidents to estimate the annual number of
investigations in those settings.
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\22\ Claire McCaskill, S. Subcomm. on Financial Contracting
Oversight--Majority Staff, Sexual Violence on Campus, 113th Cong.
(2014), https://www.hsgac.senate.gov/imo/media/doc/2014-07-09 Sexual
Violence on Campus Survey Report with Appendix.pdf.
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4.A.2. Estimates of Annual Investigations of Sexual Harassment Prior to
the 2020 Amendments to the Title IX Regulations
To estimate the likely impact of the proposed regulations, the
Department must consider the policies and practices of recipients in
responding to sexual harassment prior to the promulgation of the 2020
amendments. This consideration is necessary because the 2020 amendments
specified in the Department's Title IX regulations, for the first time,
the definition of ``sexual harassment'' and the obligation of a
recipient to respond to sexual harassment under Title IX. The proposed
regulations would require a recipient to take prompt and effective
steps to ensure that sex discrimination, including sex-based harassment
that creates a hostile environment based on sex, does not continue or
recur in the recipient's education program or activity. This proposed
use of a hostile environment standard encompasses conduct that was
addressed in enforcement practice prior to the current regulations; as
a result, data regarding recipients' actions regarding sexual
harassment prior to the 2020 amendments would assist in estimating the
likely effects of the proposed regulations. Note that the Department is
not assuming that information relating to recipient behavior prior to
the effective date of the 2020 amendments would impact the baseline
(that is, behavior and burdens in the absence of the proposed
regulations), but rather, that a number of the proposed changes would
remove some of the restrictions on recipient responses to sexual
harassment imposed by the 2020 amendments. However, the Department
notes that the proposed regulations would create different requirements
from those established in its enforcement practices prior to the 2020
amendments. As a result, recipient behavior prior to the effective date
of
[[Page 41549]]
the 2020 amendments, in the Department's view, provides some, but not
complete, insight into what recipient behavior would be if the proposed
regulations were promulgated.
In the 2020 amendments, the Department assumed that the number of
incidents reported under the Clery Act could be used as an instrument
to estimate total incidents of sexual harassment, including those not
captured in the 2014 Senate Subcommittee Report; as a result, the
Department estimated that, prior to the issuance of those amendments,
IHEs conducted approximately 5.7 Title IX investigations of sexual
harassment per year.\23\ The Department based this estimate on an
analysis of the 2014 Senate Subcommittee Report and data submitted by
IHEs under the Clery Act.
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\23\ See 85 FR 30026, 30565 (May 19, 2020).
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At the LEA level, the Department does not have publicly reported
data on the average number of investigations of sexual harassment
occurring each year. The most recent publicly available data from the
CRDC indicates an average of 3.23 incidents of sexual harassment per
LEA per year.\24\ The Department, therefore, assumes that this was the
number of investigations of sexual harassment occurring, on average,
each year in each LEA.
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\24\ U.S. Dep't of Educ., Office for Civil Rights, Civil Rights
Data Collection for the 2017-2018 School Year, https://ocrdata.ed.gov/assets/ocr/docs/2017-18-crdc-data.zip (open ``2017-18
Public Use Files''; then select ``Data''; then select ``SCH''; then
select ``CRDC''; then select ``CSV''; then select the ``Harassment
and Bullying.csv'' file) (last visited June 21, 2022).
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4.A.3. Lack of Data Following the Promulgation of the 2020 Amendments
The Department has not been able to identify reliable data sources
about actions taken by recipients following the promulgation of the
2020 amendments. As a result, it is difficult for the Department to
estimate the number of investigations that have occurred since issuance
of the 2020 amendments or the number that would likely occur in later
years in the absence of the Department's proposed regulations. This
absence of data means the Department could not construct a baseline
from which to estimate the likely effects of the proposed regulations.
Instead, the Department has a reasonable framework for understanding
the likely actions recipients would take to comply with the proposed
regulations as well as a benchmark for generating baseline estimates of
recipients' actions following the promulgation of the 2020 amendments,
based on anecdotal information from experts in the field as well as
feedback from the June 2021 Title IX Public Hearing, listening
sessions, and the meetings held under Executive Order 12866 in 2022.
These sources provide some reasonably reliable information about
actions taken by recipients to comply with Title IX prior to the
promulgation of the 2020 amendments. However, in using this anecdotal
information, the Department is mindful that the 2020 amendments
introduced requirements and definitions not previously promulgated and
thus actions prior to the 2020 amendments will not capture all aspects
of a recipient's actions following the issuance of the 2020
regulations.
The Department is not attempting to estimate the degree of sex
discrimination at recipient institutions. Rather, the Department is
attempting to estimate the number of times recipients will be required
to engage in particular activities, such as conducting investigations
or providing supportive measures. For instance, in the preamble to the
2020 amendments, the Department estimated that approximately 90 percent
of LEAs and 50 percent of IHEs would reduce the number of
investigations conducted each year. The Department estimated that, on
average, these LEAs would conduct 1.29 fewer investigations per year
under the 2020 amendments. The Department also estimated that the
annual average reduction in investigations would be -2.84 for those
IHEs that reduced their number of investigations. Since making those
assumptions in the 2020 amendments, OCR has received feedback from a
variety of stakeholders, through the June 2021 Title IX Public Hearing,
in listening sessions, and meetings held in 2022 under Executive Order
12866, that the actual reduction may have been higher due to the
deterrent effect of the perceived burden associated with the current
sexual harassment grievance procedure requirements on a complainant's
willingness to report sexual harassment or participate in a process to
resolve a formal complaint of sexual harassment. Further, based on
anecdotal reports, the Department understands that many recipients that
experienced a reduction in the number of sexual harassment complaints
filed at their respective institutions subsequent to the 2020
amendments shifted their resolution processes away from what would have
been a proceeding under current Sec. 106.45 to an alternative
disciplinary process, such as a general student conduct process outside
of the scope of Title IX. Although this information from recipients and
others confirms the Department's 2020 estimate related to the decrease
in the number of investigations, it is anecdotal and, as such, does not
provide the Department with sufficient evidence on which to revise its
2020 estimate. Further, the Department recognizes that the COVID-19
pandemic resulted in many LEAs and IHEs operating remotely, which may
have reduced the incidence or reporting of sexual harassment, the
willingness of students and others to initiate a recipient's grievance
procedures in response to alleged sexual harassment, or both. Again,
however, the Department has not identified high-quality research
studies to inform its analysis. Therefore, the Department continues to
assume that the estimates of the 2020 amendments represent the baseline
level of a recipient's actions to comply with Title IX in future years
when considered in the absence of the proposed regulations. The
Department invites comment on whether these estimates are reasonable
and whether high quality data sources or studies exist regarding
recipients' actions in response to the 2020 amendments.
Notwithstanding the estimates used for the 2020 amendments, for
recipients that saw reductions in the number of investigations
conducted each year under the 2020 amendments, the Department estimates
that 90 percent of alleged incidents that were previously classified as
sexual harassment under subregulatory guidance documents, but did not
meet the definition of ``sexual harassment'' under the current
regulations, were handled by a recipient in other disciplinary
processes. The Department invites comment on this estimate.
4.B. Developing the Model
After the effective date of the 2020 amendments to its Title IX
regulations, the Department assumes that recipients complied with the
regulatory requirements and fell into one of three groups in how they
handled complaints of sexual harassment that fell outside the scope of
the current Sec. 106.45:
Group A: Recipients did not adopt a new process to handle
complaints falling outside the current Sec. 106.45 grievance
procedures;
Group B: Recipients handled complaints falling outside the
current Sec. 106.45 regulations through a different grievance process;
Group C: Recipients handled complaints falling outside the
current Sec. 106.45 regulations through a resolution process similar
to current Sec. 106.45.
[[Page 41550]]
The Department has not assumed a recipient would behave differently
based on its public or private status. Further the Department does not
distinguish cost structures or burden hours based on public or private
status, but instead applied an average across all IHEs in each
analytical group. The Department also assumes recipients in all three
groups generally complied with the 2020 amendments to the Title IX
regulations. To the extent that a recipient did not comply with some or
all of those amendments, the following estimates may overestimate or
underestimate actual costs of the proposed regulations for that
recipient.
To populate each of the three groups, the Department is using the
same disbursement as was used in the 2020 rulemaking analysis. That is,
the Department assumes that approximately 5 percent of LEAs, 5 percent
of IHEs, and 90 percent of other recipients \25\ fall into Group A.
Generally, the Department does not anticipate that LEAs or IHEs, which
usually have existing disciplinary processes and a history of
compliance with Title IX, would adopt the minimal framework of Group A.
In contrast, other recipients, as defined in footnote 25, are less
likely to have alternative disciplinary processes and the Department
assumes that it is unlikely that these other recipients would have
established alternative processes as a result of the 2020 amendments.
The Department assumes that a recipient in this group, in response to
the proposed regulations, would experience an increase in the number of
incidents investigated each year but would also be likely to revise its
grievance procedures to fit the context of its educational environment
under proposed Sec. 106.45. As a result, although the number of
investigations may increase, each investigation and adjudication would
be less burdensome relative to investigations and adjudications under
the 2020 amendments, due to the ability of a recipient under the
proposed regulations to adopt procedures consistent with Title IX that
are prompt, equitable, and specifically adapted to its unique
circumstances, including its setting, size, and administrative
structure. Recipients in this group would see burden increases
associated with necessary revision of procedures and recordkeeping.
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\25\ Other recipients include entities other than LEAs and IHEs
which operate education programs or activities supported by the
Department and may include libraries, museums, and cultural centers,
among other types of organizations. This group represents an
exceptionally small number of LEAs and IHEs, many of which are
likely to be very small in size (e.g., an LEA of fewer than 100
students or an IHE of fewer than 15 students).
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The Department assumes that approximately 90 percent of LEAs, 50
percent of IHEs, and 5 percent of other recipients fall into Group B.
The Department believes that a recipient in this group generally
experienced some reduction in the number of sexual harassment
investigations conducted under the grievance procedure requirements of
the 2020 amendments, which would have been initiated only by a formal
complaint of sexual harassment and, based on anecdotal evidence, would
have also addressed at least some incidents that are no longer covered
under the current grievance procedure requirements by using an
alternative disciplinary process. In the preamble to the 2020
amendments, the Department did not account for such a shift in its
estimates; however, the current model assumes such behavior as part of
the baseline. The Department assumes that, in response to the proposed
regulations, Group B would see an increase in the total number of
investigations under Title IX due to the proposed application of
regulatory grievance procedures to more than sexual harassment
complaints. It is assumed that Group B would benefit from some of the
additional flexibilities offered under the proposed regulations, such
as having the option between providing equitable access to the relevant
and not otherwise impermissible evidence to the parties or providing
them with a written investigative report that accurately summarizes the
evidence under proposed Sec. 106.46. The Department also believes that
a recipient in this group would likely retain many aspects of its
current grievance procedures in response to the proposed regulations.
As a result, the Department estimates that the increase in the number
of investigations for Group B under the proposed regulations would be
smaller than the increase in the number of investigations for Group A
because of the number of investigations and adjudications already
occurring under the auspices of an alternative student or employee
conduct process. It is estimated that recipients in Group B would see
burden increases associated with necessary revision of procedures and
recordkeeping under the proposed regulations.
The Department assumes that approximately 5 percent of LEAs, 45
percent of IHEs, and 5 percent of other recipients fall into Group C. A
recipient in this group is assumed to use the grievance process
established under the 2020 amendments to also resolve conduct that was
not required to be resolved under Title IX. As a result, it is
estimated that a recipient in Group C would not see a large increase in
the number of investigations conducted annually or a meaningful change
in the burden per investigation. However, a recipient in Group C, like
those in the other two groups, may see burden increases associated with
necessary revision of procedures and recordkeeping.
For recipients in both Groups A and B, the Department assumes that
the proposed regulations addressing sex discrimination based on sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity, would result in an increase in
the number of investigations conducted annually above the average
encountered prior to the promulgation of the 2020 amendments. Although
the Department has previously addressed a recipient's obligation to
address these forms of discrimination in OCR's prior guidance,
including harassment on these bases, the Department believes that at
least some recipients may not have fully addressed these incidents
absent a regulatory requirement.\26\ The Department assumes that the
proposed inclusion of these areas in the Department's Title IX
regulations may result in a 10 percent increase in the number of
investigations conducted annually.\27\ The Department seeks
[[Page 41551]]
comment on the assumptions regarding the categorization of affected
entities and the extent to which these assumptions are reasonable.
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\26\ This is explained in greater detail in the discussions of
Pregnancy and Parental Status (Section III) and Title IX's Coverage
of All Forms of Sex Discrimination (Section IV).
\27\ As part of the 2017-2018 CRDC, schools reported 44,864
allegations of harassment and bullying on the basis of sex. That
same year, they reported 18,414 allegations of harassment and
bullying on the basis of sexual orientation, or approximately 33
percent of the number of allegations of harassment and bullying on
the basis of sex. See U.S. Dep't of Educ., Office for Civil Rights,
Civil Rights Data Collection for the 2017-2018 School Year, https://ocrdata.ed.gov/assets/ocr/docs/2017-18-crdc-data.zip (open ``2017-18
Public Use Files''; then select ``Data''; then select ``SCH''; then
select ``CRDC''; then select ``CSV''; then select the ``Harassment
and Bullying.csv'' file) (last visited June 21, 2022). The sum of
the allegations of harassment or bullying on the basis of sexual
orientation (18,414) is found in Column L of harassment and
bullying.csv in the 2017-2018 CRDC data by excluding cells with
reserve codes. The Department believes that 33 percent would
represent a very high upper bound of the number of additional
investigations conducted annually by recipients based on the
inclusion of sexual orientation and gender identity in the proposed
regulations. OCR has long recognized that ``[w]hen students are
subjected to harassment on the basis of their LGBT status, they may
also. . . be subjected to forms of sex discrimination prohibited
under Title IX. The fact that the harassment includes anti-LGBT
comments or is partly based on the target's actual or perceived
sexual orientation does not relieve a school of its obligation under
Title IX to investigate and remedy overlapping sexual harassment or
gender-based harassment.'' U.S. Dep't of Educ., Office for Civil
Rights, Dear Colleague Letter: Harassment and Bullying at 8 (Oct.
26, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. The Department believes it would be extremely
unlikely that the proposed regulations would result in such a large
increase in the number of investigations occurring annually. First,
such an assumption would imply that no allegations of harassment and
bullying on the basis of sexual orientation were also reported as
allegations of harassment and bullying on the basis of sex, which
the Department believes is highly unlikely because the CRDC
instructs schools to count a single harassment allegation under
multiple categories if it meets the definition of more than one
category. In addition, such an assumption would imply that no
allegations of harassment and bullying on the basis of sexual
orientation are currently investigated under a recipient's Title IX
procedures, which the Department also believes is highly unlikely
because, as described in the discussion of proposed Sec. 106.10,
harassment based on sexual orientation can be difficult to
distinguish from other forms of harassment based on sex. However,
the Department also believes it is unreasonable to assume that the
express inclusion of sexual orientation and gender identity in the
proposed regulations would have no effect on the number of
investigations occurring annually. Based on the analysis set out
here, the Department estimates that the additional clarity provided
by the proposed regulations would result in a 10 percent increase in
the number of investigations occurring annually.
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Although the Department notes that proposed Sec. 106.45(a)(2)
would allow a third party participating or attempting to participate in
a recipient's education program or activity to make a complaint of sex
discrimination, the Department assumes this proposed change would
result in a minimal increase in a recipient's overall number of
complaints of sex discrimination. Specifically, the Department assumes
that third-party complaints are somewhat uncommon (and would remain
so), but that these complaints serve to inform recipients of at least
some incidents of sex discrimination. In the case of a Group A
recipient, the Department assumes that the recipient's treatment of
information about conduct that may constitute discrimination received
from a third party would solely depend on whether the third party made
a complaint that initiated the recipient's grievance procedures. If the
complainant declined or was not permitted to make a complaint under the
recipient's policy, the Department assumes that the Group A recipient
would not take action to address the information. The Department
assumes that in contrast to Group A recipients, Group B and Group C
recipients would take steps to address a third-party allegation of sex
discrimination--whether by way of their Title IX process, alternative
disciplinary process, or other process depending on the circumstances
and nature of the report. Thus, although the proposed regulations may
change the process under which such information is addressed, the
inclusion of third-party complaints would not meaningfully increase the
overall number of complaints processed annually across recipients. The
Department welcomes comment on the extent to which third party
complaints might increase the average number of investigations
occurring annually above those estimated herein.
Unless otherwise specified, the Department's model uses mean hourly
wages for personnel employed in the education sector as reported by the
Bureau of Labor Statistics \28\ and a lading factor of 2.0 to account
for the employer cost of employee compensation and indirect costs
(e.g., physical space, equipment, technology costs). In addition,
throughout this RIA, some described calculations have results that are
fractions (e.g., the described analysis generates an estimate of
4.79655 incidents at LEAs in which supportive measures are offered). To
improve readability, the Department presents these results rounded to
two decimal places in the text (e.g., 4.80), but retains the unrounded
value for purposes of its underlying calculations.
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\28\ U.S. Dep't of Labor, Bureau of Labor Statistics, May 2021
National Industry-Specific Occupational Employment and Wage
Estimates: Sector 61--Educational Services, https://www.bls.gov/oes/current/naics2_61.htm (last visited May 19, 2022).
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LEAs, IHEs, and other recipients would be subject to the proposed
regulations. Estimates regarding the number of affected LEAs and IHEs
are based on the most recent data available from the National Center
for Education Statistics \29\ regarding the number of LEAs nationwide
with operational schools and the number of IHEs participating in
programs under Title IV of the HEA (such as Direct Loans, Federal Work
Study, and Pell grants). The estimate regarding the number of other
institutions is based on an internal review of the Department's grant
portfolio.
---------------------------------------------------------------------------
\29\ U.S. Dep't of Educ., Inst. of Educ. Sciences, Nat'l Ctr.
for Educ. Statistics, Elementary/Secondary Information System,
http://nces.ed.gov/ccd/elsi/ (last visited May 19, 2022); U.S. Dep't
of Educ., Inst. of Educ. Sciences, Nat'l Ctr. for Educ. Statistics,
IPEDS Data Center, https://nces.ed.gov/ipeds/datacenter/InstitutionByName.aspx (last visited May 19, 2022).
---------------------------------------------------------------------------
LEAs: It is assumed that 18,131 LEAs would be impacted by
the proposed regulations. Among affected LEAs, total enrollment during
the 2020-2021 school year ranged from fewer than 10 students to more
than 460,000 students.
IHEs: It is assumed that 6,054 IHEs would be impacted by
the proposed regulations. Among IHEs, recipients range from small,
private, professional schools with fewer than 5 students enrolled in
the Fall of 2020 to large, public research universities with
enrollments of more than 85,000 students and institutions operating
mostly virtually with enrollments in excess of 145,000 students.
Others: It is assumed that 600 other recipients would be
impacted by the proposed regulations. Other recipients include both
small Tribal cultural centers located in remote rural areas and some of
the largest and most well-funded arts centers and museums in the world.
They also include State education agencies, State vocational
rehabilitation agencies, local libraries, small parent organizations,
and a range of other entities that receive Federal grant funds from the
Department.
It is important to note that within each of these categories of
recipients, there is wide variation in the number of students served,
number of employees, administrative structure, and annual revenue. This
wide variation has made estimating the effects of the proposed
regulations challenging, and the Department notes that the estimates
provided are intended to reflect the average burden across the full
spectrum of affected entities. As a result, estimates may be lower than
the actual burden realized by, for example, larger recipients or
recipients with more complex administrative structures, and larger than
those actually realized by smaller recipients with less complex
administrative structures. The Department notes that the estimates in
the discussion of Cost Estimates (Section 4.C) were developed based on
the RIA from the 2020 amendments, as informed by comments in response
to the 2018 NPRM, as well as information received by OCR through the
June 2021 Title IX Public Hearing, in listening sessions, and during
the meetings held under Executive Order 12866 in 2022. The estimates
were further informed by the input of internal subject matter experts.
The Department invites comment on all estimates provided herein to
ensure that they accurately reflect realistic assumptions about average
burdens the proposed regulations would impose on the full range of
affected entities.
4.C. Cost Estimates
Review of Regulations and Policy Revisions
The Department assumes that all recipients would need to spend time
[[Page 41552]]
reading and understanding the proposed regulations. The time necessary
to complete this task across all recipients would likely vary widely,
with some recipients opting for a close and time-consuming review of
both the regulations and preamble, while others would rely on shorter
third-party summaries targeted for specific audiences resulting in a
less burdensome and expedient process. The Department has developed on-
average assumptions based on feedback provided by stakeholders in
listening sessions and, as noted in the discussion of Developing the
Model (Section 4.B), invites comment on these estimates. On average,
the Department assumes that it would take 4 hours each for a Title IX
Coordinator ($100.36/hour) and lawyer ($148.76/hour) to complete this
task. In total, the Department estimates that reading and understanding
the proposed regulations would have a total one-time cost of
approximately $24,697,760 in Year 1.
The Department assumes that all recipients would need to make
revisions to their grievance procedures as a result of the proposed
regulations. At each recipient institution, the Department assumes that
these revisions would take, on average, 6 hours for a Title IX
Coordinator, 2 hours for an administrator ($100.36/hour), and 6 hours
for a lawyer. In total, the Department estimates that revising
grievance procedures would have a one-time cost of $42,021,480 in Year
1. This estimate includes the costs of a recipient's revisions to its
grievance procedures associated with the Department's proposal to
require recipients to comply with its proposed revisions to Sec.
106.45 rather than current Sec. 106.45, and for IHEs to also comply
with proposed Sec. 106.46.
The proposed regulations would provide substantial clarity on
recipient obligations under Title IX. As such, some recipients may
choose to engage in supplemental review of their existing policies to
determine compliance and to make changes, if needed, in addition to the
proposed changes that may impact a recipient's grievance procedures.
The Department assumes that these estimates would be sufficient to
account for such behavior but seeks comment on the proportion of
recipients, disaggregated by type of entity if appropriate, that would
be likely to engage in supplemental policy compliance reviews as a
result of the proposed regulations, as well as the likely burden
associated with such reviews.
Although the 2020 amendments required a recipient to post
nondiscrimination statements on the recipient's website, the Department
assumes that approximately 40 percent of LEAs, 20 percent of IHEs, and
50 percent of other institutions would experience more than de minimis
burden to modify their existing statements to comply with the
requirements of the notice of nondiscrimination under proposed Sec.
106.8(c). These estimates are based, in part, on how recently the 2020
amendments went into effect, potential impacts from the COVID-19
pandemic which likely delayed at least some recipients from complying
with the requirement in the 2020 amendments, and any updates to
existing content that may be necessary due to the proposed regulations.
For a recipient that has not yet completed this requirement, the
Department assumes doing so would take 1 hour from the Title IX
Coordinator and 2 hours from a web developer ($68.48/hour).\30\ In
total, the Department estimates that posting nondiscrimination
statements on websites would have a one-time cost of $2,081,380 in Year
1.
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\30\ Note that time burden estimates for this activity are
unchanged from those used in the 2020 amendments.
---------------------------------------------------------------------------
The Department requests comment on these estimates.
Revisions to Training
The proposed regulations would likely impact the annual training
provided to Title IX Coordinators and designees, investigators,
decisionmakers, and other persons who are responsible for implementing
a recipient's grievance procedures or have the authority to modify or
terminate supportive measures. For individuals other than the Title IX
Coordinator and designees, the Department believes it is unlikely that
the length of training would have to change, and therefore believes
that any associated burden for these individuals would not change as a
result of the proposed regulations. The Department assumes that Title
IX Coordinators would revise existing training materials to incorporate
any new content and adjust the remaining parts of the training
accordingly to avoid extending the length and cost of administering the
training.
Although the Department notes that the proposed regulations would
require all employees to be trained on the scope of conduct that
constitutes sex discrimination, including the definition of ``sex-based
harassment,'' and all applicable notification requirements under
proposed Sec. Sec. 106.40(b)(2) and 106.44, the Department does not
believe that this requirement would meaningfully change the overall
annual burden related to training requirements for recipient employees.
As an initial matter, the Department assumes that all employees of
recipients receive required trainings each year and that recipients
generally strive to limit the total amount of time employees spend in
these trainings. The Department also assumes that recipients will not
budget additional funds in response to the modification of the current
training requirement, and thus, will not experience an increased
monetary burden due to this proposed change. The Department believes
that recipients make purposeful decisions about the amount of time
dedicated to each required training and would increase or decrease the
time required for particular training sessions, as needed, to ensure
that all required topics are covered within a set amount of time. As a
result, the Department assumes that the proposed regulations would
ultimately have a de minimis effect on the time burden for employees
associated with training, and requests comment on this assumption.
Across all recipients, the Department estimates that updating
training materials for individuals other than the Title IX Coordinators
would take 4 hours for the Title IX Coordinator for a total one-time
cost of $9,949,690. In subsequent years, the Department assumes that
the burden associated with the annual updating of training materials
would be about the same as it would be in the absence of the proposed
regulations.
In contrast, the Department anticipates that the proposed
regulations would require more extensive, longer training for Title IX
Coordinators compared to the current regulations. As an initial matter,
the Department assumes that a recipient would employ similar means by
which to train its Title IX Coordinator in response to the current
regulations as the recipient employed in response to the promulgation
of the 2020 amendments; however, the Department acknowledges that the
development and delivery method of the training varies among
recipients. For example, the Department assumes that some recipients
hired outside counsel, law firms, and professional organizations to
train their Title IX Coordinators while other recipients relied upon
internal stakeholders such as the recipient's general counsel. In its
tentative view, the Department has no reason to believe that a
recipient would deviate from its current source of training because of
the proposed regulations.
[[Page 41553]]
The Department assumes that such trainings would be 2 hours longer
for each Title IX Coordinator in Year 1, and 1 hour longer in future
years. In total, the Department estimates that the training of Title IX
Coordinators would have a cost of $4,974,850 in Year 1 and $2,487,423
in each succeeding year. Costs will also be incurred to update training
materials for Title IX Coordinators. These materials may be developed
in a variety of ways, depending on the preferences of individual
recipients. These materials will be more comprehensive in nature, but
individual entities may develop training materials that will be used
across many recipients. As a result, the Department assumes training
development costs for Title IX Coordinators equal to those estimated
for other individuals, equaling a one-time cost of $9,949,690. The
Department seeks comment on assumptions related to the effects of the
proposed regulations on training.
Supportive Measures
With respect to the provision of supportive measures, the
Department's proposed regulations would require a recipient to offer
supportive measures, as appropriate, to complainants and respondents
who may have experienced sex discrimination, including sex-based
harassment and prohibited retaliation. Although the current regulations
only require a recipient to offer supportive measures, as appropriate,
to complainants and respondents in response to information regarding
sexual harassment, nothing in the current regulations would prohibit a
recipient from also offering supportive measures to address other types
of sex discrimination. The Department assumes that prohibited
retaliation would most likely occur following a report or complaint of
sex-based harassment (as opposed to other forms of sex discrimination)
and that, in such instances, the types of supportive measures offered
following the initial report or complaint of sex-based harassment would
be largely indistinguishable from the types of supportive measures
offered in response to prohibited retaliation and would not result in
additional measurable cost to the recipient. Further, the Department
submits that it is unlikely that there would be an increase in the
number of individuals seeking and accepting supportive measures solely
to address the impacts of ``prohibited retaliation'' as defined under
proposed Sec. 106.71.
The Department notes that the proposed regulations state that for
allegations of sex discrimination other than sex-based harassment or
prohibited retaliation, the recipient would not be required to alter
the conduct that is alleged to be sex discrimination for the purpose of
providing a supportive measure. The Department expects that there would
be little impact on anticipated costs to recipients associated with the
proposed provision requiring supportive measures to be offered to
complainants and respondents who may have experienced other forms of
sex discrimination. The Department's assumption is based on the belief
that such information would likely fall into one of two categories. The
first category consists of information a recipient would receive about
sex discrimination related to unequal access to resources or facilities
(e.g., reports that women's sports teams have lower quality practice
facilities than men's teams or men's locker rooms are not maintained at
the same level as women's locker rooms). In these instances, the
Department anticipates that there are few, if any, appropriate
supportive measures beyond eliminating the source of sex discrimination
(e.g., improving the quality of women's practice facilities or the
men's locker rooms). Although it is the Department's current belief
that this type of information would likely result in increased costs
associated with the provision of supportive measures, there may be
additional costs incurred when addressing these types of situations
that are unrelated to providing supportive measures.
Likewise, the Department anticipates that complaints of and
information about sex discrimination in educational settings (e.g., a
teaching assistant treating an individual student differently because
of sex) would be the most likely reason for a request for supportive
measures. In these instances, appropriate supportive measures would
likely be academic in nature and have relatively minor costs (e.g.,
allowing a student to attend a section of the same class taught by a
different teaching assistant after a complaint of sex discrimination
has been made and is proceeding; counseling the teacher's aide).
For supportive measures related to sex-based harassment, the
Department assumes that the proposed regulations would have a
negligible effect on the burden per incident. Specifically, as the
variety of supportive measures and need to adapt those measures to a
particular situation makes estimating the full spectrum of costs
impracticable, the Department used the cost of more commonly provided
supportive measures when calculating cost estimates. Moreover, as it is
likely that many of the supportive measures available to individuals
are already provided by recipients, the Department expects that the
actual costs of each type of measure would be de minimis; however, the
Department has added a flat cost of $250 per incident to account for
any potential costs. The Department cannot provide greater specificity
regarding specific measures given the wide range of possible measures
that could be offered, the varying administrative structures of
recipients, and the need to align any supportive measures to the
specific facts of each case.
At the LEA level, the Department assumes that, per incident, the
provision of supportive measures currently takes 2 hours from a Title
IX Coordinator and 2 hours from an administrative assistant ($61.06/
hour), with a flat additional cost of $250 per incident.\31\ As such,
the Department assumes that, on average, the provision of supportive
measures at a LEA costs approximately $570 per incident (staff time
plus flat additional cost). At the IHE level and at other recipients,
the Department assumes that, per incident, the provision of supportive
measures currently takes 2 hours from a Title IX Coordinator and 1 hour
from an administrative assistant with a flat additional cost of $250
per incident. Therefore, the Department estimates that, on average, the
provision of supportive measures at an IHE or other recipient costs
approximately $510 per incident. The Department anticipates that the
proposed regulations may increase the number of incidents for which
supportive measures are provided per year.
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\31\ This flat cost is intended to capture any non-staff time
costs associated with the provision of supportive measures,
including but not limited to fees for services covered by the
recipient (such as for counseling) or foregone fees not collected by
the recipient (such as a waiver of fees for housing reassignment).
Note that, due to the wide variety of supportive measures that may
be offered by recipients and the need to tailor any such measures to
the specific circumstances of a particular individual, more precise
estimation of the costs associated with the provision of supportive
measures is not practicable.
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Currently, the Department assumes that a recipient offers and
potentially provides supportive measures in all instances that, prior
to the 2020 amendments, would have triggered an investigation, as well
as in many instances that previously would not have triggered an
investigation. Across all recipient types, the Department assumes that
under the proposed regulations, the number of incidents prompting an
offer and provision of
[[Page 41554]]
supportive measures would be approximately 50 percent higher than the
number of investigations conducted under the current regulations. For
example, at LEAs, where the Department assumes an average of 3.23
investigations per year were conducted before the 2020 amendments, the
Department assumes that there would be an average annual increase to
4.85 incidents prompting an offer of supportive measures under the
proposed regulations. The Department assumes that, across all recipient
types, supportive measures are accepted in approximately 90 percent of
the incidents in which they are offered. Thus, the Department assumes
that LEAs provide supportive measures 4.36 times per year. At IHEs, the
Department assumes 7.70 provisions of supportive measures per year and
at other recipients, 2.70 provisions per year. Across all recipient
types, the Department estimates that the provision of supportive
measures based on pre-2020 amendments incident data costs approximately
$69,962,040 per year.
The Department's estimates also reflect an anticipated change in
the behavior of complainants across all recipient types due to the
proposed regulations. Specifically, the Department has received
anecdotal reports of complainants accepting supportive measures while
declining to participate in a recipient's grievance procedures due to
the perceived burden associated with initiating those procedures. The
Department estimates that currently, the number of individuals
accepting supportive measures is two to three times greater than the
number of individuals choosing to pursue resolution through the
recipient's grievance procedures. Under the proposed regulations,
however, the Department estimates that the percentage of individuals
who report an incident to a recipient and choose to make a complaint to
initiate the recipient's grievance procedures under proposed Sec.
106.45, and if applicable proposed Sec. 106.46, would increase, with
the discrepancy between the two reduced, on average, to approximately
35 percent. This change is also likely to result in large, unquantified
benefits to complainants by providing increased opportunities for
reporting sex discrimination and accepting supportive measures, as
explained in the discussion of Benefits of the Proposed Regulations
(Section 3). In response to the proposed regulations, the Department
assumes, as described in the discussion of Developing the Model
(Section 4.B), that all recipients would see a 10 percent increase in
the number of incidents in which a complainant accepts some supportive
measures offered. The Department notes that this is not an assumption
that the proposed regulations would increase the number of incidents
that may initiate an offer of supportive measures, but rather, the
Department believes this increase likely would be driven by greater
clarity regarding the scope of coverage created by the proposed
regulations and enhanced training requirements which would inform
individuals who are already eligible for such measures of the
availability of these measures. The Department assumes that under the
proposed regulations, each LEA would provide supportive measures 4.80
times per year, each IHE would do so 8.47 times per year, and other
recipients would do so 2.97 times each per year. In all, the Department
estimates that after the enactment of the proposed regulations, the
provision of supportive measures would cost a total of $76,958,240, for
a net increase of $6,996,200.
The Department requests comment on the likely effect of the
proposed regulations on the costs associated with the provision of
supportive measures, particularly regarding assumptions about the
likely effects of recipients offering supportive measures in instances
of receiving information about sex discrimination not related to sex-
based harassment or prohibited retaliation.
Investigations and adjudications
Under the current regulations, the geographic location of an
alleged incident affects whether the allegations would be covered under
Title IX. As a result, the Department recognizes that LEAs and IHEs
spend time investigating whether incidents took place in a location
that requires the use of Title IX grievance procedures to investigate
and adjudicate allegations of sexual harassment. The proposed change to
Sec. 106.11 would clarify that Title IX applies to every recipient and
all sex discrimination occurring under a recipient's education program
or activity. This includes the obligation to respond to a hostile
environment based on sex under a recipient's education program or
activity in the United States, even if the sex-based harassment
contributing to the hostile environment occurred outside the
recipient's education program or activity or outside the United States.
In some instances, such as when an alleged incident occurred outside of
the United States and may have contributed to a hostile environment in
the recipient's education program or activity domestically, the
Department anticipates that the resulting investigation may be more
time consuming. Due to a lack of high-quality data on these issues, the
Department does not have a basis upon which to develop estimates of
this change. The Department seeks comment to help better estimate the
effects of this change.
As noted in the discussion of Developing the Model (Section 4.B),
it is the Department's preliminary view that recipients would fall into
three groups for purposes of categorizing their likely responses to the
proposed regulations. A recipient in Group A would likely experience an
increase in the number of Title IX investigations conducted under the
proposed regulations, but it would also likely exercise flexibilities
built into the proposed regulations which would reduce the burden per
complaint. It is important to note that the Department assumes that the
exercise of these flexibilities would not impact a recipient's ability
to ensure fair investigations and adjudications but rather, would allow
it to develop and maintain prompt and equitable procedures tailored to
its educational settings, reducing the burden on the recipient while
ensuring the implementation of a fair and equitable proceedings for the
parties. A recipient in Group B also would likely experience an
increase in the number of investigations conducted annually. However,
the Department believes in its tentative view that a recipient in Group
B would be more likely to maintain the structures required under the
2020 amendments, as these recipients likely already investigate and
adjudicate the forms of conduct covered by the proposed regulations but
excluded from the scope of the current regulations, by way of an
alternative disciplinary process. Likewise, a recipient in Group C,
having complied with the 2020 amendments and also having continued to
respond to sex discrimination as it had prior to those amendments,
would be unlikely to experience any burden changes associated with
increased numbers of investigations or changes in the burden of such
investigations.
As described in the discussion of Developing the Model (Section
4.B), the Department has a reasonable framework for understanding the
likely actions of recipients, including how long it would take for a
recipient to investigate a complaint of sexual harassment, based on
discussions with organizations that work directly with Title IX
Coordinators at LEAs and IHEs. For LEAs in Group A, the Department
estimates that an investigation currently takes, on
[[Page 41555]]
average, 3 hours from a Title IX Coordinator, 4 hours from an
administrative assistant, 2 hours each from two lawyers/advisors
($148.76/hour) when they are involved, 6 hours from an investigator
($56.52/hour), and 2 hours from an adjudicator ($75.94/hour). Note that
the Department assumes that lawyers/advisors would be involved in
approximately 15 percent of cases. For IHEs in Group A, the Department
assumes an investigation currently takes, on average, 6 hours from a
Title IX Coordinator, 8 hours from an administrative assistant, 5 hours
each from two lawyers/advisors, 10 hours from an investigator, and 2
hours from an adjudicator. For other recipients in Group A, the
Department assumes an investigation currently takes, on average, 2
hours from a Title IX Coordinator, 24 hours from an administrative
assistant, 2 hours each from two lawyers/advisors, 1 hour from an
investigator, and 2 hours from an adjudicator. Across all recipients in
Group A, the Department assumes a flat rate of $100 per adjudication to
meet the recording requirements of the 2020 amendments. The Department
estimates that LEAs in Group A currently conduct, on average, 1.94
investigations per year. At the IHE level, the Department estimates
that Group A institutions conduct 3.82 investigations per year, while
other recipients in Group A conduct, on average, one investigation per
year. In total, the Department estimates that investigations and
adjudications for recipients in Group A currently cost a total of
approximately $6,807,190.
Under the proposed regulations, the Department estimates that
recipients in Group A would develop revised procedures to ensure fair
investigations tailored to their educational settings, which would
reduce the burden associated with each investigation and adjudication.
Specifically, the removal of LEAs from some of the specific obligations
under current Sec. 106.45 would result in such recipients in Group A
no longer being required to supplement the work of their own
administrators with specialized individuals when conducting an
investigation and making a determination in response to a complaint of
sex-based harassment. The Department assumes investigations would
require 4 hours from a Title IX Coordinator or other administrator
(such as a building-level principal or assistant principal) and 4 hours
from an administrative assistant. At the IHE level, the Department
assumes each investigation and adjudication would take 5 hours from a
Title IX Coordinator, 8 hours from an administrative assistant, 5 hours
each from two lawyers/advisors, 10 hours from an investigator, and 2
hours from an adjudicator. For other recipients, the Department
anticipates a need for 2 hours from a Title IX Coordinator, 4 hours
from an administrative assistant, 2 hours each from two lawyers/
advisors, 1 hour from an investigator, and 2 hours from an adjudicator.
As a preliminary matter, the current regulations require a
recipient to create an ``audio or audiovisual recording, or
transcript'' of all live hearings. As LEAs are not required to hold
hearings, the Department assumes that few, if any, choose to do so.
However, because IHEs are required to hold hearings under the current
regulations, many recipients with means have chosen to fulfill this
requirement by using a court reporter.
For IHEs and other recipients in Group A, the Department
anticipates no change in the flat rate of $100 per investigation
associated with meeting the recording requirements. The Department
assumes no recording costs for LEAs in Group A. Under the proposed
regulations, the Department assumes that LEAs in Group A would conduct,
on average, 3.55 investigations per year; IHEs in Group A would conduct
an average of 6.27 investigations per year, and other recipients would
conduct, on average, 2.20 investigations per year. The Department
therefore estimates that, under the proposed regulations,
investigations and adjudications among recipients in Group A would cost
approximately $9,548,740 per year, which represents a net burden
increase of $2,741,550 per year.
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\32\ Estimates were based on information provided by national
professional organizations and discussions with internal subject
matter experts.
Table I--Investigations and Adjudications Burden Estimates--Group A Recipients \32\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline After proposed regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost category LEAs IHEs Other LEAs IHEs Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
Title IX Coordinator............ 3 hours........... 6 hours........... 2 hours........... 4 hours........... 5 hours........... 2 hours.
Adm. Assistant.................. 4 hours........... 8 hours........... 4 hours........... 2 hours........... 8 hours........... 4 hours.
Lawyer/Advisor \1\.............. 2 hours \2\....... 5 hours........... 2 hours........... .................. 5 hours........... 2 hours.
Investigator.................... 6 hours........... 10 hours.......... 1 hour............ .................. 10 hours.......... 1 hour.
Adjudicator..................... 2 hours........... 2 hours........... 2 hours........... .................. 2 hours........... 2 hours.
Recording....................... $100.............. $100.............. $100.............. $0................ $100.............. $100.
# of Investigations............. 1.94.............. 3.82.............. 1.00.............. 3.55.............. 6.27.............. 2.20.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ When present, the Department assumes two lawyers/advisors per investigation and adjudication.
\2\ The Department assumes lawyers/advisors are involved in only 15 percent of investigations and adjudications. This estimate is based on information
from a professional organization.
For LEAs in Group B, the Department assumes an investigation
currently requires 3 hours of time from a Title IX Coordinator, 14
hours from an administrative assistant, 8 hours each from two lawyers/
advisors in 15 percent of cases, 8 hours from an investigator, and 2
hours from an adjudicator. At the IHE level in Group B, the Department
estimates that current practices likely require 6 hours from a Title IX
Coordinator, 20 hours from an administrative assistant, 20 hours each
from two lawyers/advisors, 20 hours from an investigator, and 10 hours
from an adjudicator. At other recipients in Group B, the Department
assumes that current practices require 8 hours from a Title IX
Coordinator, 16 hours from an administrative assistant, 8 hours each
from two lawyers/advisors, 5 hours from an investigator, and 2 hours
from an adjudicator. At LEAs and other recipients in Group B, the
Department estimates that it would cost a flat rate of $100 per hearing
to meet the recording requirements of the 2020 amendments.
[[Page 41556]]
At IHEs, the Department assumes a rate of $200 per hearing to account
for the possibility that IHEs may want more extensive records of
hearings, such as official transcripts, in addition to an audio
recording. The Department assumes that LEAs in Group B currently
conduct, on average, 1.938 investigations per year; that IHEs in Group
B conduct 3.82 investigations per year, and that other recipients in
Group B conduct one investigation per year. In total, therefore, the
Department estimates that investigations and adjudications for a
recipient in Group B currently cost approximately $184,185,730 per
year.
As noted in the discussion of Lack of Data Following the
Promulgation of the 2020 Amendments (Section 4.A.3), the Department
assumes that a recipient in Group B shifted approximately 90 percent of
those incidents into an alternative disciplinary process rather than
not taking any action in response to incidents that were previously
covered under their Title IX policies. As described in the discussion
of Developing the Model (Section 4.B), the Department has initially
determined, based on internal subject matter expertise, that many
recipients developed alternative processes by which to address conduct
that fell outside of the parameters of current Sec. 106.45. As noted
in that section, Group B and Group C recipients created alternative
processes that either reflected the recipient's student conduct process
(Group B recipients) or mirrored the current Sec. 106.45 grievance
procedures (Group C recipients). The Department assumes that resource
and time expenditures for these alternative processes mirror those of
the recipient's student conduct process for Group B recipients or the
recipient's current Sec. 106.45 grievance procedures for Group C
recipients.
At the LEA level, the Department assumes that an alternative
disciplinary process requires 3 hours from an administrator ($100.36/
hour), 14 hours from an administrative assistant, 6 hours each from two
lawyers/advisors in 5 percent of cases, and 6 hours from an
investigator. The Department estimates that in 75 percent of LEAs, the
process is adjudicated by an administrator for 3 additional hours,
while in the other 25 percent of LEAs, an independent adjudicator is
needed for 2 hours. At the IHE level, the Department assumes that the
alternative disciplinary process requires 6 hours from an
administrator, 20 hours from an administrative assistant, 10 hours each
from two lawyers/advisors, and 15 hours from an investigator. The
Department estimates that in 60 percent of IHEs, the process is
adjudicated by an administrator for 6 additional hours, while in the
other 40 percent of IHEs, an independent adjudicator is required for 8
hours. The Department estimates that LEAs in Group B, on average,
shifted 1.628 investigations per year into alternative disciplinary
processes in response to the 2020 amendments, while IHEs did the same
with 1.70 investigations, and other recipients did so for 0.9
investigations. The Department therefore estimates that a recipient
currently spends approximately $62,463,510 per year on implementing
alternative disciplinary processes for incidents that were previously
covered under their grievance procedures prior to the 2020 amendments.
Under the proposed regulations, the Department assumes that all of
those incidents would be handled under the recipient's Title IX
grievance procedures. At LEAs in Group B, the revised procedures would
require approximately 4 hours from a Title IX Coordinator or other
administrator (such as a building level principal or assistant
principal) and 2 hours from an administrative assistant. The Department
assumes that, in approximately 25 percent of instances, LEAs would use
an investigator and adjudicator other than the Title IX Coordinator or
other administrator. In such instances, the Department assumes that
those LEAs would need 2 hours from an investigator and 1 hour from an
adjudicator. The Department assumes that, in 5 percent of instances,
each party would have a lawyer/advisor each spending 4 hours on the
incident. These LEA level estimates represent an assumption that most
LEAs would return to their processes from prior to the 2020 amendments
due to the removal of LEAs from some of the specific obligations under
current Sec. 106.45. At the IHE level in Group B, the revised
procedures would require 5 hours from a Title IX Coordinator, 13 hours
from an administrative assistant, 15 hours each from two lawyers/
advisors, 18 hours from an investigator, and 8 hours from an
adjudicator. For other Group B recipients, revised procedures would
require 2 hours from a Title IX Coordinator, 6 hours from an
administrative assistant, 2 hours each from two lawyers/advisors in 5
percent of proceedings, 2 hours from an investigator, and 1 hour from
an adjudicator.
Under the proposed regulations, the Department believes that Group
B LEAs would conduct, on average, 3.553 investigations per year, while
IHEs would conduct 6.27 investigations per year, and other recipients
would conduct 2.20 investigations per year. Therefore, under the
proposed regulations, investigations and adjudications at a recipient
in Group B would cost a total of approximately $180,542,490 per year
which represents a net decrease in the burden associated with
investigations and hearings by $66,106,750 per year.
Table II--Investigations and Adjudications Burden Estimates--Group B Recipients
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost category Baseline After proposed regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harassment grievance procedures LEAs IHEs Other LEAs IHEs Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
Title IX Coordinator............ 3 hours........... 6 hours........... 8 hours........... 4 hours........... 5 hours........... 2 hours.
Adm. Assistant.................. 14 hours.......... 20 hours.......... 16 hours.......... 2 hours........... 13 hours.......... 6 hours.
Lawyer/Advisor \1\.............. 8 hours \2\....... 20 hours.......... 8 hours........... 4 hours \3\....... 15 hours.......... 2 hours.
Investigator.................... 8 hours........... 20 hours.......... 5 hours........... 2 hours \4\....... 18 hours.......... 2 hours.
Adjudicator..................... 2 hours........... 10 hours.......... 2 hours........... 1 hours \4\....... 8 hours........... 1 hour.
Recording....................... $100.............. $200.............. $100.............. $100.............. $200.............. $100.
# of Investigations............. 1.94.............. 3.82.............. 1.00.............. 3.55.............. 6.27.............. 2.20.
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Alternate Process............... LEAs.............. IHEs.............. Other.............
-----------------------------------------------------------------------------------------------------------------------
Administrator................... 3 hours \5\....... 6 hours \6\....... 4 hours...........
Adm. Assistant.................. 14 hours.......... 20 hours.......... 8 hours...........
Lawyer/Advisor \1\.............. 6 hours \3\....... 10 hours..........
[[Page 41557]]
Investigator.................... 6 hours........... 15 hours..........
Adjudicator..................... 2 hours........... 8 hours...........
Recording....................... $100.............. $200.............. $100..............
# of Investigations............. 1.16.............. 1.70.............. 0.90..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ When present, the Department assumes two lawyers/advisors per investigation and adjudication.
\2\ The Department assumes lawyers/advisors are involved in 15 percent of investigations and adjudications.
\3\ The Department assumes lawyers/advisors are involved in 5 percent of investigations and adjudications.
\4\ The Department assumes investigators and adjudicators other than the Title IX Coordinator or another administrator would be used in approximately 25
percent of instances.
\5\ The Department assumes administrators also serve as adjudicators in 75 percent of instances and their burden doubles in such cases.
\6\ The Department assumes administrators also serve as adjudicators in 60 percent of instances and their burden doubles in such cases.
Appeals and Informal Resolution
The Department assumes that nothing in the proposed regulations
would change the nature of the appeal process for fully adjudicated
complaints. The Department notes that the proposed regulations would
require all recipients to offer an appeal of a dismissal of a sex
discrimination complaint. This limited right to an appeal is an
expansion of recipients' current obligations as it would apply to any
dismissal of a sex discrimination complaint, not just to complaints of
sex-based harassment. Although it is possible that at least some
portion of recipients have an appeal process as part of their current
procedures for resolving complaints of sex discrimination, the
Department assumes that its current estimates may overestimate the
costs of the proposed regulations in this area. The Department requests
comment on this issue. Assuming that there is a de minimis change
regarding the number of recipients that offer an appeal because all
recipients would need to offer an appeal from a dismissal of a
complaint of sex discrimination, there would be additional costs to a
recipient associated with appeals because of the estimated increase in
the number of complaints brought under the proposed regulations and the
proportion of decisions that could be appealed.
Across all recipients, the Department estimates that one or more
parties in approximately half of all fully adjudicated complaints
appeal the determination. This estimate is consistent with estimates
from the 2020 amendments and the Department again seeks comment on the
extent to which this estimate is reasonable and whether this proportion
is likely to change under the proposed regulations. The Department
assumes that at the LEA level, the appeal process would require 2 hours
each from a Title IX Coordinator, administrative assistant, and two
lawyers/advisors as well as an additional 6 hours from an adjudicator
while at the IHE level, the Department assumes that the appeal process
requires 2 hours from a Title IX Coordinator, 4 hours from an
administrative assistant, 5 hours each from two lawyers/advisors, and 8
hours from an adjudicator. Likewise, at other recipients, the
Department assumes that the appeal process requires 2 hours each from a
Title IX Coordinator, administrative assistant, and two lawyers/
advisors, with an additional 8 hours from an adjudicator. Assuming that
LEAs, on average, would handle an additional 0.605 appeals per year as
a result of the proposed regulations, IHEs, on average, would receive
an additional 0.921 appeals per year, and other recipients, on average,
would see an additional 0.5 per year, the Department estimates that the
increase in appeals stemming from the increase in complaints likely to
be made under the proposed regulations would result in an additional
cost of approximately $21,084,350 per year.
The Department expects that the proposed regulations would have a
de minimis change on the proportion of complaints resolved through
informal resolution and would not affect the general burden associated
with each such resolution. Specifically, although the requirements for
grievance procedures would be less burdensome under the proposed
regulations than under the current regulations, the Department expects
that the majority of complainants who would have elected to proceed
with informal resolution under the current regulations would continue
to do so under the proposed regulations because of the elimination of
the current regulations' formal complaint requirement prior to
initiating the informal resolution process. Although it is possible
that a complainant would decide to make a complaint and pursue an
investigation because of the reduced burden under the proposed
regulations, it is the Department's tentative view that there is no
basis to assume that a complainant who would have pursued informal
resolution under the current regulations is more or less likely to
choose informal resolution under the proposed regulations because
individuals' rationales for choosing an informal resolution process
vary widely.
Based on anecdotal reports from recipients and other stakeholders,
the Department assumes that informal resolutions require more time from
a Title IX Coordinator and an administrative assistant than an
investigative process. In contrast, the Department assumes that the
informal resolution process would remove all costs associated with
investigators, adjudicators, and recording at all levels and eliminate
costs for lawyers/advisors at the LEA level. At the LEA level, informal
resolution may require 1 additional hour from a Title IX Coordinator
and 5 hours from an administrative assistant above the level needed for
a full hearing; at the IHE level, the additional burden would be 2.5
hours from a Title IX Coordinator and 1 hour from an administrative
assistant, while at other recipients, the additional burden is
estimated to be 1 hour from a Title IX Coordinator and 3 hours from an
administrative assistant. The Department assumes that, in instances of
informal resolution, there would be no burden for investigators or
adjudicators at LEAs, IHE, or other recipients, and no burden for
lawyers/advisors at LEAs or other recipients. At the IHE level, the
Department assumes that, even in instances of informal resolution,
there would be a burden of 6 hours each for two lawyers/advisors (one
working with each party), assuming that the individuals serving in
those roles may become involved earlier in the process than at other
educational levels or at other recipients. In light of the increase in
complaints that the Department anticipates under the
[[Page 41558]]
proposed regulations, the estimated increase in the cost of informal
resolutions would be approximately $12,830,090 per year.
Recordkeeping
The Department assumes that all recipients would need to modify
their existing recordkeeping systems to comply with the proposed
regulations. Specifically, the Department submits that proposed Sec.
106.8(f) would broaden the existing scope of the recordkeeping
requirements under current Sec. 106.45(b)(10) because, unlike the
current regulations, the proposed recordkeeping requirement applies to
all incidents or complaints of sex discrimination. However, the
Department assumes that many recipients already maintain records
related to sex discrimination under the auspices of State, local, or
other requirements. In these instances, proposed Sec. 106.8(f) would
not impose any additional burden on those recipients as their existing
recordkeeping activity would likely address all pertinent requirements
under the proposed regulations.
Alternatively, for recipients that only maintain records related to
sexual harassment as required by current Sec. 106.45(b)(10) and do not
preserve information related to other forms of sex discrimination, the
proposed changes would increase their burden based on the volume of
records they will need to maintain related to forms of sex
discrimination other than sexual harassment, as would be required by
proposed Sec. 106.8(f). The Department estimates that the proposed
regulations, in general, would increase the recordkeeping burden for
these recipients. At the LEA level, the Department estimates that
necessary modifications to current practice would require 2 hours each
from a Title IX Coordinator and an administrative assistant, whereas at
the IHE level, where a recipient is more likely to maintain electronic
systems for these records, these changes would require 4 hours from a
Title IX Coordinator, 8 hours from an administrative assistant, and 4
hours from a database administrator ($76.54/hour). At other recipients,
the Department estimates that modifications would require 2 hours each
from a Title IX Coordinator and an administrative assistant. In total,
the Department estimates that modifications to recipients'
recordkeeping systems would cost approximately $13,288,180 in Year 1.
In future years, the Department assumes the proposed regulations
would necessitate an ongoing increase, above the baseline year, in
recordkeeping costs. Specifically, at the LEA level, the Department
estimates that recordkeeping would require 1 additional hour each from
the Title IX Coordinator and an administrative assistant; at the IHE
level, 1 additional hour from the Title IX Coordinator and 5 hours from
an administrative assistant; and at other recipients, 1 additional hour
each from the Title IX Coordinator and an administrative assistant. In
total, the Department estimates the ongoing recordkeeping burden to
increase by approximately $5,382,570 per year.
The Department seeks comment on these estimates, particularly
whether they accurately reflect the likely changes in annual burden on
recipients associated with the proposed changes to Sec. 106.8(f).
Monitoring the Recipient's Education Program or Activity for Barriers
to Reporting Information About Conduct That May Constitute Sex
Discrimination
The Department's proposed regulations would require a recipient to
ensure that its Title IX Coordinator monitors the recipient's education
program or activity for barriers to reporting sex discrimination and
that the recipient take steps reasonably calculated to address such
barriers. Although a recipient is neither required to nor prohibited
from monitoring its environment for these barriers under the current
regulations, the Department assumes that many recipients, particularly
IHEs, currently monitor their education programs or activities for such
barriers to avoid potential legal liability because barriers to
reporting limit a recipient's ability to ensure that its education
program or activity is operating free from sex discrimination. The
Department also assumes that Title IX Coordinators are motivated to
proactively identify and address sex discrimination in the recipient's
education program or activity. Although some recipients may need to
create new mechanisms to monitor their environments, the Department
believes that many of these recipients will select options with de
minimis costs, such as incorporating questions designed to elicit
information from students and employees about barriers to reporting
into existing training materials, incorporating such questions into
conversations with students, employees, and others during roundtable
discussions or listening sessions with interested stakeholders, or
through other means. The Department similarly assumes that the steps a
recipient would need to take to remove these barriers, should they be
identified, would likely have a de minimis cost as well (e.g.,
reminding students, employees, and others during trainings about the
range of reporting options available at a particular recipient or
reporting an employee who discourages their students from reporting to
human resources for violating the recipient's code of ethics
standards). That said, the Department recognizes that there is a wide
range of possible recipient responses to this proposed requirement with
potentially varying costs and benefits. Therefore, the Department
requests comment on the likely costs associated with monitoring a
recipient's environment for barriers to sex discrimination and taking
steps reasonably calculated to remove such barriers.
4.D. Changes in the Proposed Regulations Not Estimated To Have Costs
In addition to the changes explained in the discussion of Cost
Estimates (Section 4.C) that are estimated to have costs, there are
several proposed changes that the Department does not anticipate would
generate costs for regulated entities above and beyond general costs
described previously. The Department believes it is important to
discuss some of these proposed changes to clarify the basis for that
assumption and ensure that the public has an adequate opportunity to
review and comment on the Department's analysis.
Lactation Space for Students and Employees
Although the current regulations specifically prohibit
discrimination against students and employees based on pregnancy,
childbirth, termination of pregnancy, and recovery, the Department
proposes revising the regulations to clarify that a recipient may not
discriminate based on pregnancy or related conditions, including
lactation. The Department also proposes revisions to the regulations
that would require a recipient to provide a lactation space for
students and employees and reasonable modifications for students and
break time for employees to enable use of the space as needed.
Specifically, proposed Sec. 106.40(b)(3)(iv) would require a recipient
to ``[e]nsure the availability of a lactation space, which must be a
space other than a bathroom, that is clean, shielded from view, free
from intrusion from others, and may be used by a student for expressing
breast milk or breastfeeding as needed.'' Similarly, proposed Sec.
106.57(e) would require a recipient to provide ``reasonable break
[[Page 41559]]
time for an employee to express breast milk or breastfeed as needed''
and to ``ensure the availability of a lactation space, which must be a
space other than a bathroom that is clean, shielded from view, free
from intrusion from others, and may be used by an employee for
expressing breast milk or breastfeeding as needed.'' Both measures are
critical means for preventing discrimination and ensuring that students
and employees are able to continue pursuing their education and
employment, respectively, while taking brief breaks from their classes
or job duties as needed to express breast milk or breastfeed.
The Department does not anticipate significant cost to recipients
based on this proposed revision. Although it is possible that the
proposed regulations' clarification that a lactation space must be
available for both students and employees may result in an increase in
demand for a such a space, it is the Department's tentative view that
any such increase would likely result in a de minimis impact on costs
as distributed over all recipients over time. The Department posits
this for several reasons.
First, although it is unknown how many recipients presently offer
lactation space for students or employees due to a lack of data, all or
virtually all recipients are already required to comply with provisions
for lactation time and space for employees covered under the Affordable
Care Act's amendments to Section 7 of the Fair Labor Standards Act
(FLSA).\33\ The FLSA requires employers to provide reasonable break
times and a private place, other than a bathroom, to employees covered
under Section 7 of the FLSA who are breastfeeding to express milk for
one year after their child's birth. 29 U.S.C. 207(r)(1). The space must
be ``shielded from view and free from intrusion from coworkers and the
public.'' Id. The Department of Labor (DOL) has explained that the
space must also be ``functional'' and ``available when needed'' and
that the ``frequency of breaks needed to express milk as well as the
duration of each break will likely vary.'' U.S. Dep't of Labor, Fact
Sheet #73: Break Time for Nursing Mothers under the FLSA (April 2018),
https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers. DOL has also clarified that a temporary or converted
space is sufficient if the space is available when needed, shielded
from view, and free from any intrusion from co-workers and the public.
Id. Employees who would be covered by the lactation time and space
requirements of the FLSA include many full-time and part-time workers
in public and private education programs or activities. 29 U.S.C.
203(e). Although the FLSA exempts certain employees, such as
professors, teachers, and certain academic administrative personnel
from coverage, virtually all recipients would nevertheless have to
provide lactation space to their non-exempt staff. See 29 U.S.C.
213(a)(1) (exempting executive, administrative, and professional
employees, including academic administrative personnel and teachers,
from the FLSA); 29 U.S.C. 207(r)(1) (FLSA lactation time and space
requirement). The Department does not have specific information about
existing lactation spaces for employees due to a lack of relevant data.
The Department assumes, however, that given the limited requirements
for the lactation space itself, that most recipients would be able to
locate such a space within their current property or maximize the use
of an existing space. The Department's proposed requirements regarding
lactation space are similar to those of the FLSA with the additional
requirement that the space be clean. The Department assumes that most,
if not all, recipients already clean their facilities, including any
existing lactation space, and anticipates that the additional cost of
cleaning associated with the proposed regulations would be negligible.
---------------------------------------------------------------------------
\33\ Under the FLSA, a covered enterprise is ``the related
activities performed through unified operation or common control by
any person or persons for a common business purpose and . . . is
engaged in the operation of a . . . a preschool, an elementary or
secondary school, or an institution of higher education (whether
operated for profit or not for profit)'' or ``is an activity of a
public agency.'' U.S. Dep't of Labor, Handy Reference Guide to the
Fair Labor Standards Act (Sept. 2016), https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa.
---------------------------------------------------------------------------
Second, some States also require a recipient either to provide
lactation space to employees or to make reasonable attempts to do so.
See, e.g., Minn. Stat. Ann. Sec. 181.939 (2014) (requiring employers
to make a reasonable effort to provide a private location, other than a
bathroom or toilet stall, in close proximity to the workplace that is
shielded from view, free from intrusion, and has an electrical outlet);
N.M. Stat. Ann. Sec. 28-20-2 (2007) (requiring employers to provide a
clean, private place, not a bathroom, for employees who are
breastfeeding to pump); N.Y. Labor Law Sec. 206-C (2007) (requiring
that employers make a reasonable attempt to provide employees a private
location for lactation); Okla. Stat. tit. 70, Sec. 5-149.3 (2021)
(requiring each school district board of education to make a reasonable
effort to provide a private, secure, sanitary room or other location,
other than a toilet stall, for an employee to express milk or
breastfeed a child); R.I. Gen. Laws Sec. 28-5-7.4 (2015) (prohibiting
employers from refusing to reasonably accommodate an employee's or
prospective employee's condition related to pregnancy, childbirth, or a
related medical condition, including but not limited to the need to
express breast milk for a nursing child; ``reasonable accommodation''
is defined to include a ``private non-bathroom space for expressing
breast milk''); S.C. Code Ann. Sec. 41-1-130 (2020) (requiring
employers to make reasonable efforts to provide certain areas where
employees may express breast milk); Tenn. Code Ann. Sec. 50-1-305
(1999) (requiring employers to make a reasonable effort to provide a
private location, other than a toilet stall, near the workplace for
employees' lactation); Utah Code Ann. Sec. 34-49-202 (2015) (requiring
public employers to provide employees a clean, private room or location
that is not a bathroom and that has an electrical outlet for lactation,
as well as access to a refrigerator or freezer for the storage of
breast milk); Vt. Stat. Ann. Tit. 21, Sec. 305 (2008) (requiring
employers to ``[m]ake a reasonable accommodation [for lactation] to
provide appropriate private space that is not a bathroom stall''); Va.
Code Sec. 22.1-79.6 (2014) (requiring local school boards to designate
private, non-restroom locations for employees and students to express
breast milk); Wash. Rev. Code 43.10.005 (2017) (requiring employers to
provide a private location, other than a bathroom, for employee
lactation, or if no such space exists, work with the employee to
identify a convenient location for lactation). As some States already
require recipients to provide lactation spaces or make reasonable
attempts to do so, the Department believes that the proposed
requirement would be neither burdensome nor costly as many recipients
may already be required to comply with similar provisions due to State
law.
In addition, for some recipients, lactation space and break times
may be the subject of local laws or separate employment agreements,
such as collective bargaining agreements. Some recipients may simply
provide lactation space and break time voluntarily. In short, the
Department anticipates that its proposed regulations would impose de
minimis cost on a recipient that is already providing lactation space
and breaks to its staff.
[[Page 41560]]
The Department acknowledges that in some cases, the proposed
regulations may result in increased demand for lactation space or break
time. It is difficult to quantify the extent to which demand might
increase or how demand might vary over time as the Department is not
aware of any available data source that tracks the numbers of students
or employees in need of lactation space. The Department anticipates
that demand would vary across recipients, based on the composition of
the student and employee population at any time, further reducing the
impact to individual recipients.
When a recipient already has a lactation space, the Department
anticipates that it is likely that the space would meet the
Department's proposed requirements for the reasons already discussed.
In addition, because a lactation space is only in use by any given
person for a limited period of time, it is possible that many
recipients already have sufficient capacity to accommodate additional
users; however, the Department anticipates that a recipient that does
not currently provide lactation space would be able to comply with the
proposed regulations using existing space at minimal cost. For example,
the proposed regulations do not require that a lactation space be of a
particular size, shape, or include particular features other than being
private and clean. Similarly, the Department anticipates that a
recipient that currently provides lactation space would already have a
system in place to administer use of the space (for example, through a
sign-up system) to the extent needed and that this could be adapted to
accommodate new demand with minimal cost.
With respect to the Department's proposed requirement that a
recipient provide its employees with reasonable break time for
lactation, the Department also anticipates that any increased demand
could be managed through an existing system for coverage of employees
who require brief breaks for other reasons. This is more likely to be
necessary for LEA school teachers, whose breaks may require coverage
because of the nature of school schedules, rather than employees at
IHEs who may not require coverage during breaks needed for lactation
because those employees do not typically have supervisory
responsibility for children. The Department also recognizes that at
some IHEs and other types of recipients, some employees would have
access to a private office that is sufficient for lactation needs.
Finally, the Department anticipates that its proposed regulations
regarding lactation time and space would also likely improve the
recipient's retention of its students and employees. For example, a
student parent may be more comfortable remaining in an education
program or activity in which the recipient is reducing barriers to
remaining in school during the early months and years of a child's
life. Likewise, an employee who has access to sufficient lactation time
and space may also be more likely to return to the workplace or return
earlier from parental leave than one who does not have such access
because the employee knows that they can continue to breastfeed after
returning to work. For these reasons, the Department submits that this
provision, as proposed, would impose de minimis costs and would provide
important benefits in terms of eliminating sex-based barriers to
education and employment.
Reasonable Modifications for Students Because of Pregnancy or Related
Conditions
The Department does not anticipate significant cost to a recipient
based on proposed Sec. 106.40(b)(3)(ii) and (4), which would require
that a recipient provide a student the option of reasonable
modifications because of the student's ``pregnancy or related
conditions'' as defined by proposed Sec. 106.2, because this
requirement is similar to OCR's previous discussion of a recipient's
obligations in this context. U.S. Dep't of Educ., Office for Civil
Rights, Supporting the Academic Success of Pregnant and Parenting
Students Under Title IX of the Education Amendments of 1972 at 9 (June
2013) (2013 Pregnancy Pamphlet), https://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf. Current Sec. 106.40(b)(1) prohibits a
recipient from discriminating against or excluding ``any student from
its education program or activity, including any class or
extracurricular activity, on the basis of the student's pregnancy,
childbirth, false pregnancy, termination of pregnancy or recovery
therefrom, unless the student requests voluntarily to participate in a
separate portion of the program or activity of the recipient.''
Likewise, current Sec. 106.40(b)(4) has long required a recipient to
treat pregnancy or related conditions similarly to other temporary
disabilities ``with respect to any medical or hospital benefit,
service, plan, or policy [the] recipient administers, operates, offers,
or participates in with respect to students admitted to the recipient's
educational program or activity.''
OCR's 2013 Pregnancy Pamphlet clarified that to ``ensure a pregnant
student's access to its educational program, when necessary, a school
must make adjustments to the regular program that are reasonable and
responsive to the student's temporary pregnancy status. For example, a
school might be required to provide a larger desk, allow frequent trips
to the bathroom, or permit temporary access to elevators.'' 2013
Pregnancy Pamphlet at 9. As the requirement for reasonable
modifications because of pregnancy or related conditions builds upon
the former ``reasonable and responsive'' standard and sets a clearer
framework for how to assess what must be provided, the Department does
not anticipate that the required steps for compliance with the proposed
``reasonable modifications because of pregnancy or related conditions''
standard under proposed Sec. 106.40(b)(4) would be more costly than
under the prior OCR interpretation of a recipient's duties.
Participation Consistent With Gender Identity
The Department does not anticipate significant cost to a recipient
above and beyond the general costs described in the discussion of Costs
of the Proposed Regulations (Section 4), to comply with proposed
Sec. Sec. 106.31(a)(2) and 106.41(b)(2). Proposed Sec. 106.31(a)(2)
would clarify that even in the discrete, limited settings in which a
recipient may impose different treatment or separate students on the
basis of sex, a recipient must not do so in a manner that subjects a
person to more than de minimis harm, unless otherwise permitted by
Title IX or the Title IX regulations. Proposed Sec. 106.31(a)(2) also
would clarify that adopting a policy or engaging in a practice that
prevents a person from participating in an education program or
activity consistent with their gender identity causes more than de
minimis harm. As described in the discussion of Coverage of All Forms
of Sex Discrimination (Section IV), the proposed regulations'
prohibition on preventing a person from participating in an education
program or activity consistent with their gender identity is consistent
with the analysis of Federal courts that have addressed how Title IX
protects students from discrimination based on sex stereotypes and
gender identity. Some stakeholders have expressed concern about costs
associated with permitting students to participate in certain education
programs or activities consistent with their gender identity.
Compliance with proposed Sec. 106.31(a)(2) may require
[[Page 41561]]
updating of policies or training materials, but would not require
significant expenditures, such as construction of new facilities or
creation of new programs. For the many schools that have long
maintained policies and practices that generally permit students to
participate in school consistent with their gender identity, the
proposed regulations may not require any change. See, e.g., Cal. Dep't
of Educ., Legal Advisory regarding application of California's
antidiscrimination statutes to transgender youth in schools (updated
Sept. 16, 2021), https://www.cde.ca.gov/re/di/eo/legaladvisory.asp
(describing obligation under California and Federal law that schools
afford students equal opportunity and access to the school's
facilities, activities, and programs, in a manner that is consistent
with each student's gender identity); Washoe Cnty. Sch. Dist.,
Administrative Regulation 5161: Gender Identity and Gender Non-
Conformity--Students (2019), https://www.wcsdpolicy.net/pdf_files/administrative_regulations/5161_Reg-Gender_Identify-v2.pdf (permitting
students to participate in sex-separate activities in accordance with
their gender identity). A recipient that maintains policies and
practices that prevent students from participating in school consistent
with their gender identity would be required to review and update those
policies and practices under the proposed regulations; however, the
Department anticipates that the costs of these modifications would be
subsumed into the general costs of updating policies and procedures to
comply with the proposed regulations.
The Department notes that some costs associated with proposed Sec.
106.31(a)(2) may be addressed elsewhere in the RIA. For instance, to
the extent that a recipient's failure to comply with proposed Sec.
106.31(a)(2) would lead to additional investigations of alleged
discrimination, those costs are addressed in the discussion of costs
associated with the proposal to clarify Title IX's coverage of gender
identity discrimination. Similarly, to the extent that a recipient
would take steps to train employees or students on gender identity
discrimination, those costs are addressed in the discussion of costs
associated with training. As this is an evolving area of the law, the
Department anticipates there may be some costs associated with
potential litigation.
The Department acknowledges that these assumptions are uncertain,
and requests comment on anticipated changes associated with compliance
with proposed Sec. 106.31(a)(2), along with information on any costs
associated with such changes.
5. Regulatory Alternatives Considered
The Department reviewed and assessed various alternatives prior to
issuing the proposed regulations, drawing from internal sources, as
well as feedback OCR received in connection with the June 2021 Title IX
Public Hearing, numerous listening sessions, and the meetings held in
2022 under Executive Order 12866. In particular, the Department
considered the following alternative actions: (1) leaving the current
regulations without amendment; (2) rescinding the current regulations
in their entirety and reissuing past guidance, including U.S. Dep't of
Educ., Office for Civil Rights, Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third
Parties at 3, noticed at 66 FR 5512 (Jan. 19, 2001) (rescinded upon
effective date of 2020 amendments, Aug. 14, 2020), www.ed.gov/ocr/docs/shguide.pdf; U.S. Dep't of Educ., Office for Civil Rights, Dear
Colleague Letter: Sexual Violence (Apr. 4, 2011) (rescinded in 2017),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; and U.S. Dep't of Educ., Office for Civil Rights, Questions
and Answers on Title IX and Sexual Violence at 5 (Apr. 29, 2014)
(rescinded in 2017), www.ed.gov/ocr/docs/qa-201404-title-ix.pdf; (3)
rescinding the current regulations, either in whole or in part, and
issuing new guidance; (4) proposing narrower amendments to the current
regulations, or (5) issuing completely new proposed amendments to
address significant areas (e.g., clarifying coverage includes gender
identity, applying regulatory grievance procedure requirements to all
sex discrimination complaints, and adding regulatory provisions on a
recipient's obligation to students and employees who are pregnant or
experiencing pregnancy-related conditions).
The Department believes a combination of (4) and (5), which
involves issuing proposed amendments, is the better alternative. The
combination of these alternatives would mean amending the current
regulations to make noteworthy adjustments that would better achieve
the objectives of the statute, are consistent with recent case law, and
account for the feedback OCR received in connection with its June 2021
Title IX Public Hearing, numerous listening sessions, and the meetings
held in 2022 under Executive Order 12866. Based on its internal review,
the Department's current view is that the current regulations may not
fully address all forms of sex discrimination in a recipient's
education program or activity or offer sufficient safeguards to
reduce--and ultimately remove--sex discrimination in the educational
setting. The approach adopted in the 2020 amendments may have created a
gap in implementing Title IX's prohibition on sex discrimination: a
recipient may have information about possible sex discrimination in its
education program or activity and yet may have no obligation to take
any action to address it if a formal complaint is not filed and the
recipient's Title IX Coordinator determines that the allegations do not
warrant overriding a complainant's wishes and initiating a complaint.
Numerous stakeholders shared their concerns with the Department,
specifically that certain requirements in the current regulations may
impede a recipient from taking prompt and effective action in response
to allegations of sexual harassment in the recipient's education
program or activity. By creating extensive obligations related only to
certain forms of sexual harassment and leaving a recipient's
obligations with respect to the necessary grievance procedures to
respond to other forms of sex-based harassment and sex discrimination
unaddressed, the current regulations may have created a risk that Title
IX's prohibition on sex discrimination would be underenforced. In
addition, it is the Department's tentative view that greater clarity is
required than what is in the current regulations with respect to the
scope of sex discrimination, including with respect to discrimination
based on sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity. The Department is
concerned that equal access to a recipient's education program or
activity free from sex discrimination may be impaired absent this
clarity.
For reasons explained in the RIA as well as throughout the
preamble, and in light of stakeholder feedback received in 2021 and
2022, alternative (1) was not a reasonable option. Alternatives (2) and
(3) were rejected because the Department continues to believe that it
is necessary to establish, through regulations, the legal obligations
of a recipient to ensure that its education program or activity is free
from all forms of sex discrimination; guidance documents, which are not
legally binding on a recipient, would not serve that function.
After careful consideration of these alternatives, the Department
proposes that adopting alternatives (4) and (5) to
[[Page 41562]]
(a) best fulfill Title IX's guarantee of nondiscrimination on the basis
of sex by a recipient of Federal funds in its education program or
activity; (b) ensure that a recipient understands its obligations to
address sex discrimination in all forms, including sex-based
harassment, so that students and others can participate in the
educational environment free from discrimination based on sex; (c)
safeguard fairness for all who participate in a recipient's grievance
procedures for sex discrimination, including sex-based harassment; (d)
protect a person's rights under Title IX by requiring a recipient to
provide appropriate supportive measures to the complainant and the
respondent and remedies to a complainant or any other person the
recipient identifies as having their equal access to the recipient's
education program or activity limited or denied by sex discrimination;
and (e) ensure that a recipient understands its obligations to prevent
discrimination against and ensure equal access for students and
employees who are pregnant or experiencing pregnancy-related
conditions.
In addition to reviewing stakeholder feedback, the Department
considered alternatives to the proposed regulations based upon its
internal analysis of the costs and benefits of various options.
Clarification of the Scope of Title IX
During its review of various alternatives to the proposed
regulations, the Department considered whether to clarify and define
the scope of Title IX. Specifically, although the current regulations
define sexual harassment, they do not clarify the scope of Title IX's
prohibition on sex discrimination. The Department considered several
options to address this area and chose to specify in the proposed
regulations that Title IX's prohibition on sex discrimination includes
discrimination on the basis of pregnancy or related conditions, sex
stereotypes, sex characteristics, sexual orientation, and gender
identity. Although the Department recognizes that clarifying the scope
of Title IX could result in increased costs to recipients, especially
those recipients that limited the application of their Title IX
policies to those forms of conduct explicitly referenced in the current
regulations, the Department believes that the non-monetary benefits of
providing clarity and recognizing the broad scope of Title IX's
protections outweighs the costs associated with the implementation of
these robust protections.
Clarification of the Geographic Scope of Title IX's Prohibition on Sex
Discrimination
The Department also considered retaining the current regulations'
scope of coverage with respect to conduct that occurs off-campus and
off school grounds. Numerous stakeholders in OCR's June 2021 Title IX
Public Hearing, OCR's listening sessions, and the meetings held in 2022
under Executive Order 12866 requested that the Department explicitly
include additional instances of off-campus conduct within the scope of
its proposed regulations. Specifically, these stakeholders commented
that excluding such conduct denied students, employees, and others
equal access to a recipient's education program or activity and failed
to fully implement Title IX. As explained in greater detail in the
discussion of investigations and adjudications in Cost Estimates
(Section 4.C), the Department acknowledges the potential cost increase
for a recipient in addressing discrimination that occurs off-campus and
also in addressing a hostile environment within the recipient's
education program or activity that arises in part from sex-based
harassment that occurs off-campus. However, the Department expects that
many recipients are already addressing such conduct and incurring
related costs through their creation and implementation of alternative
disciplinary proceedings to address discriminatory conduct previously
addressed through their Title IX procedures prior to the current
regulations. Moreover, the Department now believes that the conduct
excluded from the current regulations may have profound and long-
lasting economic impacts on students, employees, a recipient's
educational environment, and the general public and that the benefits
of addressing this conduct through the proposed regulations far
outweighs any associated costs.
Distinguishing Between Educational Levels
The Department also considered whether to distinguish between
educational levels in the proposed regulations. Specifically, during
the June 2021 Title IX Public Hearing, in listening sessions, and
during the meetings held in 2022 under Executive Order 12866,
stakeholders associated with LEAs expressed concerns that certain
requirements in the current regulations impeded their ability to
successfully address sexual harassment in their day-to-day school
environment. Likewise, the Department considered whether all students
and employees should remain subject to identical regulations or
whether, for the reasons set out in the preamble, equitable treatment
under Title IX would be best ensured by amending the regulations in
ways that require IHEs to be responsive to the unique needs of their
students. For reasons explained in the discussions of Benefits of the
Proposed Regulations (Section 3) and Costs of the Proposed Regulations
(Section 4), the Department is unable to quantify the benefits or costs
of enabling recipients to adapt equitable grievance procedures to their
educational environment; however, as discussed throughout the preamble,
the Department believes that not doing so would result in continuing
impediments to full implementation of Title IX's nondiscrimination
guarantee. Alternatively, the Department believes that the proposed
regulations create the benefit of enabling all recipients to respond
promptly and equitably to sex discrimination in their program or
activity, remedy that discrimination as appropriate, and increase
access and the opportunity to participate free from sex discrimination.
6. Accounting Statement
As required by OMB Circular A-4, the following table is the
Department's accounting statement showing the classification of the
expenditures associated with the provisions of the proposed
regulations. This table provides the Department's best estimate of the
changes in annual monetized costs, benefits, and transfers as a result
of the proposed regulations.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Category Benefits (calculated on an
annual basis)
----------------------------------------------------------------------------------------------------------------
Address gaps in coverage in current regulations............................... Not quantified
Clarify scope of Title IX's protection........................................ Not quantified
Clarify responsibilities toward students who are experiencing pregnancy or
related conditions........................................................... Not quantified
----------------------------------------------------------------------------------------------------------------
[[Page 41563]]
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Category Benefits (calculated on an
annual basis)
----------------------------------------------------------------------------------------------------------------
Costs (calculated on an annual
basis)
----------------------------------------------------------------------------------------------------------------
3% 7%
Reading and Understanding the Regulations..................................... $2,811,001 $3,286,360
Policy Revisions.............................................................. 4,782,718 5,591,508
Publishing Notice of Nondiscrimination........................................ 236,894 276,955
Training of Title IX Coordinators............................................. 2,770,531 2,818,407
Updating Training Materials................................................... 2,264,868 2,647,873
Supportive Measures........................................................... 6,996,204 6,996,204
Group A Investigations........................................................ 2,741,547 2,741,547
Group B Investigations........................................................ (66,106,747) (66,106,747)
Appeal Process................................................................ 21,084,353 21,084,353
Informal Resolutions.......................................................... 12,830,088 12,830,088
Creation and Maintenance of Documentation..................................... 6,425,456 6,761,161
----------------------------------------------------------------------------------------------------------------
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand. The Secretary invites comments
on how to make the proposed regulations easier to understand, including
answers to questions such as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
the Department divided them into more (but shorter) sections? (A
``section'' is preceded by the symbol ``Sec. '' and a numbered heading;
for example, is Sec. 106.8 Designation of coordinator, adoption and
publication of nondiscrimination policy and grievance procedures,
notice of nondiscrimination, training, and recordkeeping.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could the Department do to make the proposed
regulations easier to understand?
To send any comments that concern how the Department could make the
proposed regulations easier to understand, see the instructions in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act (Small Business Impacts)
1. Introduction
This analysis, required by the Regulatory Flexibility Act (RFA),
presents an estimate of the effect of the proposed regulations on small
entities. The U.S. Small Business Administration (SBA) Size Standards
define ``proprietary IHEs'' as small businesses if they are
independently owned and operated, are not dominant in their field of
operation, and have total annual revenue below $7,000,000. ``Nonprofit
institutions'' are defined as small entities if they are independently
owned and operated and not dominant in their field of operation.
``Public institutions and LEAs'' are defined as small organizations if
they are operated by a government overseeing a population below 50,000.
2. Initial Regulatory Flexibility Analysis
As explained in the discussion of Lack of Data Following the
Promulgation of the 2020 Amendments (Section 4.A.3) of the RIA, there
is a lack of high quality, comprehensive data about recipients' Title
IX compliance activities and burdens following the implementation of
the 2020 amendments. As a result, the Department could not definitively
conclude that burdens on small entities, particularly among recipients
other than IHEs or LEAs, would be sufficiently low to justify
certification under the RFA. If an agency is unable to make such a
certification, it must prepare an Initial Regulatory Flexibility
Analysis (IRFA) as described in the RFA. Based on the data available,
the Department has completed an IRFA and requests comments from
affected small entities.
The purpose of this analysis is to identify the number of small
entities affected, assess the economic impact of the proposed
regulations on those small entities, and consider alternatives that may
be less burdensome to small entities that meet the Department's
regulatory objectives. Specifically, the Department estimates the
number of small entities potentially impacted by the proposed
regulations in the discussion of Estimated Number of Small Entities
(Section 2.B), assesses the potential economic impact of the proposed
regulations on those small entities in the discussion of Estimate of
the Projected Burden of the Proposed Regulations on Small Entities
(Section 2.C), and examines and considers less burdensome alternatives
to the proposed regulations for small entities in the Discussion of
Significant Alternatives (Section 2.D). The Department requests comment
on the burdens currently faced by small entities in complying with the
2020 amendments and likely changes to that burden as a result of the
proposed regulations, including the total number of Title IX
investigations conducted each year by small entities and the extent to
which the burden assumptions described in the RIA are reasonable for
small entities (i.e., whether particular activities are likely to take
more or less time or cost more or less than otherwise estimated).
2.A. Reasons for Regulating
The Department's review of the current regulations and of feedback
received during and pursuant to the June 2021 Title IX Public Hearing,
as well as listening sessions and meetings held in 2022 under Executive
Order 12866, suggests that the current regulations do not best fulfill
the requirement of Title IX that recipients of Federal financial
assistance eliminate discrimination based on sex in their education
programs or activities. The Department has determined that more clarity
and greater specificity would better equip recipients to create and
maintain school environments free from sex discrimination. This, in
turn, will help recipients ensure that all persons have equal access to
educational opportunities in accordance with Title IX's
nondiscrimination mandate.
The goal of the Department's proposed regulations is to fully
effectuate Title IX by clarifying and specifying the scope and
application of Title IX protections and recipients' obligation not to
discriminate based on
[[Page 41564]]
sex. Specifically, the proposed regulations focus on ensuring that
recipients prevent and address sex discrimination, including but not
limited to sex-based harassment, in their education programs or
activities; clarifying the scope of Title IX's protection for students
and others who are participating or attempting to participate in a
recipient's education program or activity; defining important terms
related to a recipient's obligations under Title IX; ensuring the
provision of supportive measures, as appropriate to restore or preserve
a complainant's or respondent's access to the recipient's education
program or activity; clarifying a recipient's responsibilities toward
students who are pregnant or experiencing pregnancy-related conditions;
and clarifying that Title IX's prohibition on sex discrimination
encompasses discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity. In addressing confusion about coverage of sex-
based harassment in the current regulations, the Department's proposed
regulations also set out requirements that enable recipients to meet
their obligations in settings that vary in size, student populations,
and administrative structure. The proposed regulatory action would
strengthen the current framework, clarify the scope and application of
Title IX, and fully align the Title IX regulations with the
nondiscrimination mandate of Title IX.
2.B. Estimated Number of Small Entities
As in the 2020 amendments (85 FR 30026), for purposes of assessing
the impacts on small entities, the Department proposes defining a
``small IHE'' as a two-year IHE with an enrollment of fewer than 500
full time equivalent (FTE) or a four-year IHE with an enrollment of
fewer than 1,000 FTE. The Department also proposes defining a ``small
LEA'' as an LEA with annual revenues of less than $7,000,000.
During the 2020-2021 school year, of the 6,165 Title IV
participating IHEs for which sufficient data are available, 2,803 were
four-year institutions, 1,644 were two-year institutions, and 1,718
were less-than-two-year institutions. Of those, 1,226 four-year
institutions, 690 two-year institutions, and 1,650 less-than-two-year
institutions met the Department's proposed definition of a ``small
IHE.''
Table 1--Number of Small IHES, Fall 2020
----------------------------------------------------------------------------------------------------------------
Less than two-
Four-year Two-year year Total
----------------------------------------------------------------------------------------------------------------
Not Small....................................... 1,577 954 68 2,599
Small........................................... 1,226 690 1,650 3,566
----------------------------------------------------------------------------------------------------------------
Total....................................... 2,803 1,644 1,718 6,165
----------------------------------------------------------------------------------------------------------------
During the 2018-2019 school year, 6,518 of the 17,798 LEAs with
available revenue data met the Department's proposed definition of a
``small LEA.''
The Department does not have comprehensive revenue data for other
recipients in order to estimate the number of entities that would meet
the applicable SBA size standards. The Department therefore requests
comment on the number of other recipients affected by these proposed
regulations that meet these standards.
Table 2--Number of Small LEAS, Fall 2018
------------------------------------------------------------------------
LEAs
------------------------------------------------------------------------
Not Small............................................... 11,280
Small................................................... 6,518
------------------------------------------------------------------------
Total............................................... 17,798
------------------------------------------------------------------------
2.C. Estimate of the Projected Burden of the Proposed Regulations on
Small Entities
As discussed throughout the RIA, Group A institutions are those
most likely to see a net cost increase from the proposed regulations.
As such, a Group A IHE would fare worse than an IHE in Group B or Group
C. As described in the discussion of Developing the Model (Section
4.B), an IHE in Group A would see a net increase in costs of
approximately $8,986 per year. For purposes of assessing the impacts on
small entities, the Department proposes defining a ``small IHE'' as a
two-year IHE with an enrollment of less than 500 FTE or a four-year IHE
with an enrollment of less than 1,000 FTE, based on official 2020 FTE
enrollment. The Department notes that this estimate assumes that each
small IHE would conduct the same number of investigations per year, on
average, as the total universe of all affected IHEs. The Department
believes it is much more likely that small IHEs will conduct fewer
investigations per year and therefore, their actual realized costs will
be less than those estimated herein. According to data from the
Integrated Postsecondary Education Data System (IPEDS), in FY 2019,
small IHEs had, on average, total revenues of approximately
$10,349,540.\34\ Therefore, the Department estimates that the proposed
regulations could generate a net cost for small IHEs equal to
approximately 0.08 percent of annual revenue. According to data from
IPEDS, approximately 175 IHEs had total reported annual revenues of
less than $900,000, for which the costs estimated above would
potentially exceed 1 percent of total revenues. Those IHEs enrolled, on
average, 36 students in Fall 2020. For institutions of this size, the
Department currently believes it would be highly unlikely for the
recipient to conduct 6.3 investigations per year, which would represent
a rate of investigations approximately 18 times higher than all other
institutions, on average. The Department therefore does not anticipate
that the proposed regulations would place a substantial burden on small
IHEs.
---------------------------------------------------------------------------
\34\ Based on data reported for FY 2020 for ``total revenue and
other additions'' for public institutions and ``total revenues and
investment return'' for private not-for-profit and private for-
profit institutions.
---------------------------------------------------------------------------
As in the 2020 amendments, for purposes of assessing the impacts on
small entities, the Department proposes defining a ``small LEA'' as one
with annual revenues of less than $7,000,000. Based on the model
described in the discussion of Developing the Model (Section 4.B), an
LEA in Group A would see a net increase in costs of approximately
$1,761 per year. The Department notes that these estimates assume small
LEAs conduct the same number of investigations per year, on average, as
all other LEAs. To the extent that smaller LEAs conduct fewer
investigations, on average, than all LEAs, these annual costs will be
overestimated for small LEAs. In 2018-2019, small LEAs had an average
total revenue of approximately $3,450,911.
[[Page 41565]]
Therefore, the Department estimates that the proposed regulations could
generate a net cost for small LEAs of approximately 0.05 percent of
total revenues. According to data from the National Center for
Education Statistics, in 2018-2019, 123 LEAs had total revenues of less
than $1,760,000, for which the estimated costs would potentially exceed
1 percent of total revenues. Those LEAs enrolled, on average, 35
students each in the 2018-2019 school year. For LEAs of this size, the
Department currently believes it would be highly unlikely for the
recipient to conduct 3.6 investigations per year, which would represent
a rate of investigations approximately 80 times higher than all other
LEAs, on average. The Department, therefore, does not anticipate that
these proposed regulations would place a substantial burden on small
LEAs.
As described in the discussion of Developing the Model (Section
4.B), an ``other'' recipient in Group A would see a net increase in
costs of approximately $3,090 per year. As explained in the discussion
of small IHEs and small LEAs, the Department notes that these estimates
assume small other entities would conduct the same number of
investigations per year, on average, as all other recipients in this
category. To the extent that smaller entities conduct fewer
investigations on average than all other recipients, these annual costs
will be overestimated for small other recipients. Although the
Department does not have revenue data for all other recipients, for
purposes of this analysis, the Department will assume that, among other
recipients with annual revenues of less than $7,000,000, the average
annual revenue is approximately $3,500,000, which assumes that
recipient revenues are normally distributed within the range of $0 to
$7,000,000. At this level, the estimated cost would constitute
approximately 0.09 percent of total revenues. The Department notes
that, for estimated costs to exceed 1 percent of total revenues,
``other'' recipients would need total annual revenues of less than
$309,000. The Department believes that very few other recipients would
fall into this category, in part, because in FY 2020, among other
recipients receiving less than $1,000,000 in grant funds from the
Department, the average grantee received approximately $377,000 in
Federal grant funds. Among those receiving less than $500,000 in
funding from the Department, the average other recipient received
approximately $287,000 in grant funds in FY 2020. Even with very small
amounts of non-Federal funding, it is unlikely that costs of compliance
with these proposed regulations would exceed 1 percent of annual
revenues for these recipients. The Department, therefore, does not
expect that these proposed regulations would place a substantial burden
on small other recipients.
The Department requests comment on any additional burdens for small
entities. The Department also requests comment on whether small
entities may discontinue their Federal funding due to the impacts of
the proposed regulations.
2.D. Discussion of Significant Alternatives
The Department also considered alternatives that could potentially
reduce the burden for small entities. One alternative would be to
extend the effective date of the Title IX regulations for small
entities such that they would have additional time to implement key
components of the regulations. However, it would be premature for the
Department to consider an extension at this juncture because no
regulatory compliance date has been set. In addition, an extension of
the effective date would delay the efforts of small entities to ensure
that their education programs or activities are free from sex
discrimination, thereby depriving students, employees, and others of
their rights under Title IX. Another alternative would be to waive
certain requirements for small entities to help facilitate their
compliance with Title IX. The Department declines this approach at this
time because the proposed requirements are critical to ensuring that
all education programs or activities that receive Federal funding do
not discriminate based on sex. In addition, the proposed regulations
are more adaptable than the current regulations and would provide
greater opportunities for small entities to tailor their compliance
efforts to their particular settings. Finally, the Department
considered proposing different requirements for smaller-sized
recipients than for mid-sized or larger ones. The Department rejects
this alternative at this time because the Title IX rights of students,
employees, and other members of a recipient's educational community do
not depend on the size of a recipient, and the proposed regulations are
sufficiently adaptable for small entities to adopt the approach that
works best for them. Being subjected to sex discrimination in a
recipient's education program or activity can affect an applicant's
opportunity to enroll in a recipient's education program or activity, a
student's ability to learn and thrive in and outside of the classroom,
a prospective or current employee's ability to contribute their talents
to the recipient's educational mission, and the opportunity of all
participants to benefit, on an equal basis, from the recipient's
education program or activity. Thus, permitting a small entity the
opportunity to delay implementation of the proposed regulations,
waiving certain requirements for smaller entities, or having different
requirements for small entities could jeopardize these important civil
rights and harm students, employees, and others. The Department
requests comment on the extent to which the Department's rationale for
not adopting each of the alternatives discussed in this section is
reasonable and whether there are additional alternatives for reducing
burden on small entities without frustrating the purpose of the
proposed regulations.
Executive Order 12250 on Leadership and Coordination of
Nondiscrimination Laws
Under Executive Order 12250, the Attorney General has the
responsibility to ``review . . . proposed rules . . . of the Executive
agencies'' implementing nondiscrimination statutes such as Title IX
``in order to identify those which are inadequate, unclear or
unnecessarily inconsistent.'' \35\ The Attorney General has delegated
that function to the Assistant Attorney General for the Civil Rights
Division for purposes of reviewing and approving proposed rules, 28 CFR
0.51, and the Assistant Attorney General has reviewed and approved this
proposed rule.
---------------------------------------------------------------------------
\35\ Executive Order on Leadership and Coordination of
Nondiscrimination Laws, Exec. Order. No. 12250, 45 FR 72995 (Nov. 4,
1980), https://tile.loc.gov/storage-services/service/ll/fedreg/fr045/fr045215/fr045215.pdf.
---------------------------------------------------------------------------
Paperwork Reduction Act of 1995
As part of its continuing effort to reduce paperwork and the burden
of responding, the Department provides the general public and Federal
agencies with an opportunity to comment on proposed and continuing
collections of information in accordance with the Paperwork Reduction
Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This requirement helps
ensure that: (1) the public understands the Department's collection
instructions; (2) respondents can provide the requested data in the
desired format; (3) reporting burden (time and financial resources) is
minimized; (4) collection instruments are clearly understood; and (5)
the Department can properly assess the
[[Page 41566]]
impact of collection requirements on respondents.
As discussed in Cost Estimates (Section 4.C.), the Department
estimates that all regulated entities would experience an increased
recordkeeping burden under the proposed regulations as a result of the
proposed changes to recordkeeping requirements in proposed Sec.
106.8(f). Specifically, in Year 1, the Department estimates that
compliance would require an additional 4 hours of recordkeeping burden
per LEA, 16 hours per IHE, and 4 hours per other recipient. In total,
the Department estimates the Year 1 recordkeeping burden associated
with the proposed regulations to be a net increase of 171,788 hours.
In subsequent years, the Department estimates that the proposed
regulations would require an additional ongoing burden of 2 hours per
LEA, 6 hours per IHE, and 2 hours per other recipient. In total, the
Department estimates an ongoing annual recordkeeping burden increase of
72,586 hours. However, the Department's current view is that proposed
Sec. 106.8(f) will not result in a change of disclosure requirements.
Specifically, there are three main reasons for this assumption: (1)
recipients were already required to maintain all records related to
sexual harassment under the current regulations; (2) many recipients
(based on anecdotal reports) were already conducting and maintaining
records related to alternative disciplinary proceedings addressing
conduct outside of the coverage area of the current regulations; and
(3) based upon anecdotal reports, many recipients were already
maintaining their records related to sex discrimination. As a result,
the Department believes that recipients falling within one or more of
these categories would experience a de minimis increase in the number
of disclosures.
------------------------------------------------------------------------
OMB control number
Regulatory section Information and estimated change
collection in burden
------------------------------------------------------------------------
106.8(f).................... This regulatory OMB 1870-NEW Changes
provision requires would increase
a recipient to burden over the
maintain certain first seven years
documentation by $45,712,498 382,
related to Title IX 168 hours.
activities.
------------------------------------------------------------------------
The Department prepared an Information Collection Request (ICR) for
this collection. This proposed collection is identified as proposed
collection OMB control number 1870-NEW. If you would like to review and
comment on the ICR, please follow the instructions listed below in this
section of this document. Please note that the Office of Information
and Regulatory Affairs (OIRA) and the Department of Education review
all comments posted at http://www.regulations.gov.
When commenting on the information collection requirements, the
Department considers your comments on these collections of information
in--
Deciding whether the collections are necessary for the
proper performance of our functions, including whether the information
will have practical use;
Evaluating the accuracy of our estimate of the burden of
the collections, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information the Department collects; and
Minimizing the burden on those who must respond, which
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques.
Comments submitted in response to this document should be submitted
electronically through the Federal eRulemaking Portal http://www.regulations.gov by selecting Docket ID Number ED-2021-OCR-0166.
Please specify the Docket ID number and indicate ``Information
Collection Comments'' if your comment(s) relate to the information
collection for the proposed regulations. If you need further
information, email [email protected].
Consistent with 5 CFR 1320.8(d), the Department is soliciting
comments on the information collection through this document. OMB is
required to make a decision concerning the collections of information
contained in the proposed regulations between 30 and 60 days after
publication of this document in the Federal Register. Therefore, to
ensure that OMB gives your comments full consideration, it is important
that OMB receives your comments by August 11, 2022. This does not
affect the deadline for your comments to us on the proposed
regulations. However if you require an accommodation, cannot otherwise
request information, or cannot submit your comments electronically,
please submit requests for information or your ICR comments to
Strategic Collections and Clearance Director, U.S. Department of
Education, 400 Maryland Avenue SW, LBJ Room 6W201, Washington, DC
20202-8240.
Intergovernmental Review: This program is not subject to Executive
Order 12372 and the regulations in 34 CFR part 79 because it is not a
program or activity of the Department that provides Federal financial
assistance.
Assessment of Educational Impact: In accordance with section 411 of
the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary
particularly requests comments on whether the proposed regulations
would require transmission of information that any other agency or
authority of the United States gathers or makes available.
Federalism: Executive Order 13132 requires the Department to ensure
meaningful and timely input by State and local elected officials in the
development of regulatory policies that have federalism implications.
``Federalism implications'' means substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The proposed regulations, including
Sec. Sec. 106.6, 106.8, 106.31, 106.40, 106.44, 106.45, 106.46, and
106.57 may have federalism implications. The Department encourages
State and local elected officials to review and provide comments on the
proposed regulations.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or other accessible
format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at http://www.govinfo.gov. At this site you can
view this document, as well as all other documents of this Department
published in the Federal Register, in text or Adobe Portable Document
Format (PDF). To use PDF you must
[[Page 41567]]
have Adobe Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at: http://www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects in 34 CFR Part 106
Civil rights, Education, Sex discrimination, Youth organizations.
Miguel A. Cardona,
Secretary of Education.
For the reasons discussed in the preamble, the Department of
Education proposes to revise 34 CFR part 106 to read as follows:
PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
0
1. The authority citation for part 106 continues to read as follows:
Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.
0
2. Section 106.1 is revised to read as follows:
Sec. 106.1 Purpose.
The purpose of this part is to effectuate Title IX, which is
designed to eliminate (with certain exceptions) discrimination on the
basis of sex in any education program or activity receiving Federal
financial assistance, whether or not such program or activity is
offered or sponsored by an educational institution as defined in this
part. This part is also intended to effectuate section 844 of the
Education Amendments of 1974, Public Law 93-380, 88 Stat. 484.
0
3. Section 106.2 is revised to read as follows:
Sec. 106.2 Definitions.
As used in this part, the term:
Administrative law judge means a person appointed by the reviewing
authority to preside over a hearing held under Sec. 106.81.
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
Applicant, as used in the definition of educational institution in
this section and as used in Sec. 106.4, means one who submits an
application, request, or plan required to be approved by a Department
official, or by a recipient, as a condition to becoming a recipient.
Assistant Secretary means the Assistant Secretary for Civil Rights
of the Department.
Complainant means:
(1) A student or employee who is alleged to have been subjected to
conduct that could constitute sex discrimination under Title IX; or
(2) A person other than a student or employee who is alleged to
have been subjected to conduct that could constitute sex discrimination
under Title IX and who was participating or attempting to participate
in the recipient's education program or activity when the alleged sex
discrimination occurred.
Complaint means an oral or written request to the recipient to
initiate the recipient's grievance procedures as described in Sec.
106.45, and if applicable Sec. 106.46.
Confidential employee means:
(1) An employee of a recipient whose communications are privileged
under Federal or State law associated with their role or duties for the
institution;
(2) An employee of a recipient whom the recipient has designated as
a confidential resource for the purpose of providing services to
persons in connection with sex discrimination--but if the employee also
has a role or duty not associated with providing these services, the
employee's status as confidential is limited to information received
about sex discrimination in connection with providing these services;
or
(3) An employee of a postsecondary institution who is conducting an
Institutional Review Board-approved human-subjects research study
designed to gather information about sex discrimination--but the
employee's confidential status is limited to information received while
conducting the study.
Department means the Department of Education.
Disciplinary sanctions means consequences imposed on a respondent
following a determination that the respondent violated the recipient's
prohibition on sex discrimination.
Educational institution means a local educational agency (LEA) as
defined by section 8101 of the Elementary and Secondary Education Act
of 1965, as amended by the Every Student Succeeds Act (20 U.S.C.
7801(30)), a preschool, a private elementary or secondary school, or an
applicant or recipient that is an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education.
Elementary school means elementary school as defined by section
8101 of the Elementary and Secondary Education Act of 1965, as amended
by the Every Student Succeeds Act (20 U.S.C. 7801(19)), and a public or
private preschool.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Department:
(1) A grant or loan of Federal financial assistance, including
funds made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market
value of the property is not, upon such sale or transfer, properly
accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement which has as one
of its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution
which:
(1) Offers academic study beyond the bachelor of arts or bachelor
of science degree, whether or not leading to a certificate of any
higher degree in the liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first
[[Page 41568]]
professional degree (regardless of whether the first professional
degree in such field is awarded by an institution of undergraduate
higher education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years
of college level study beyond the high school level, leading to a
diploma or an associate degree, or wholly or principally creditable
toward a baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body which certifies credentials or offers
degrees, but which may or may not offer academic study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) which offers a
program of academic study that leads to a first professional degree in
a field for which there is a national specialized accrediting agency
recognized by the Secretary.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) which has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates, diplomas, or degrees and
whether or not it offers fulltime study.
Parental status, as used in Sec. Sec. 106.21(c)(2)(i),
106.37(a)(3), 106.40(a), and 106.57(a)(1), means the status of a person
who, with respect to another person who is under the age of 18 or who
is 18 or older but is incapable of self-care because of a physical or
mental disability, is:
(1) A biological parent;
(2) An adoptive parent;
(3) A foster parent;
(4) A stepparent;
(5) A legal custodian or guardian;
(6) In loco parentis with respect to such a person; or
(7) Actively seeking legal custody, guardianship, visitation, or
adoption of such a person.
Peer retaliation means retaliation by a student against another
student.
Postsecondary institution means an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education that serves postsecondary school students.
Pregnancy or related conditions means:
(1) Pregnancy, childbirth, termination of pregnancy, or lactation;
(2) Medical conditions related to pregnancy, childbirth,
termination of pregnancy, or lactation; or
(3) Recovery from pregnancy, childbirth, termination of pregnancy,
lactation, or their related medical conditions.
Program or activity and program means all of the operations of--
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or local government; or
(ii) The entity of a State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is established by two or more of the
entities described in paragraph (1), (2), or (3) of this definition,
any part of which is extended Federal financial assistance.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or
any person, to whom Federal financial assistance is extended directly
or through another recipient and which operates an education program or
activity which receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Relevant means related to the allegations of sex discrimination
under investigation as part of the grievance procedures under Sec.
106.45, and if applicable Sec. 106.46. Questions are relevant when
they seek evidence that may aid in showing whether the alleged sex
discrimination occurred, and evidence is relevant when it may aid a
decisionmaker in determining whether the alleged sex discrimination
occurred.
Remedies means measures provided, as appropriate, to a complainant
or any other person the recipient identifies as having had equal access
to the recipient's education program or activity limited or denied by
sex discrimination. These measures are provided to restore or preserve
that person's access to the recipient's education program or activity
after a recipient determines that sex discrimination occurred.
Respondent means a person who is alleged to have violated the
recipient's prohibition on sex discrimination.
Retaliation means intimidation, threats, coercion, or
discrimination against any person by a student, employee, person
authorized by the recipient to provide aid, benefit, or service under
the recipient's education program or activity, or recipient for the
purpose of interfering with any right or privilege secured by Title IX
or this part, or because the person has reported information, made a
complaint, testified, assisted, or participated or refused to
participate in any manner in an investigation, proceeding, or hearing
under this part, including in an informal resolution process under
Sec. 106.44(k), in grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, and in any other appropriate steps taken by a
recipient in response to sex discrimination under Sec. 106.44(f)(6).
Reviewing authority means that component of the Department
delegated authority by the Secretary to appoint, and to review the
decisions of, administrative law judges in cases arising under this
part.
Secondary school means secondary school as defined by section 8101
of the Elementary and Secondary Education Act of 1965, as amended by
the Every Student Succeeds Act (20 U.S.C. 7801(45)), and an institution
of vocational education that serves secondary school students.
Secretary means the Secretary of Education.
Sex-based harassment prohibited by this part means sexual
harassment,
[[Page 41569]]
harassment on the bases described in Sec. 106.10, and other conduct on
the basis of sex that is:
(1) Quid pro quo harassment. An employee, agent, or other person
authorized by the recipient to provide an aid, benefit, or service
under the recipient's education program or activity explicitly or
impliedly conditioning the provision of such an aid, benefit, or
service on a person's participation in unwelcome sexual conduct;
(2) Hostile environment harassment. Unwelcome sex-based conduct
that is sufficiently severe or pervasive, that, based on the totality
of the circumstances and evaluated subjectively and objectively, denies
or limits a person's ability to participate in or benefit from the
recipient's education program or activity (i.e., creates a hostile
environment). Whether a hostile environment has been created is a fact-
specific inquiry that includes consideration of the following:
(i) The degree to which the conduct affected the complainant's
ability to access the recipient's education program or activity;
(ii) The type, frequency, and duration of the conduct;
(iii) The parties' ages, roles within the recipient's education
program or activity, previous interactions, and other factors about
each party that may be relevant to evaluating the effects of the
alleged unwelcome conduct;
(iv) The location of the conduct, the context in which the conduct
occurred, and the control the recipient has over the respondent; and
(v) Other sex-based harassment in the recipient's education program
or activity.
(3) Specific offenses. (i) Sexual assault meaning an offense
classified as a forcible or nonforcible sex offense under the uniform
crime reporting system of the Federal Bureau of Investigation;
(ii) Dating violence meaning violence committed by a person who is
or has been in a social relationship of a romantic or intimate nature
with the victim;
(iii) Domestic violence meaning felony or misdemeanor crimes of
violence committed by a person who:
(A) Is a current or former spouse or intimate partner of the victim
under the family or domestic violence laws of the jurisdiction of the
recipient, or a person similarly situated to a spouse of the victim;
(B) Is cohabitating, or has cohabitated, with the victim as a
spouse or intimate partner;
(C) Shares a child in common with the victim; or
(D) Commits acts against a youth or adult victim who is protected
from those acts under the family or domestic violence laws of the
jurisdiction; or
(iv) Stalking meaning engaging in a course of conduct directed at a
specific person that would cause a reasonable person to:
(A) Fear for the person's safety or the safety of others; or
(B) Suffer substantial emotional distress.
Student means a person who has gained admission.
Student with a disability means a student who is an individual with
a disability as defined in the Rehabilitation Act of 1973, as amended,
29 U.S.C. 705(9)(B), (20)(B), or a child with a disability as defined
in the Individuals with Disabilities Education Act, 20 U.S.C. 1401(3).
Supportive measures means non-disciplinary, non-punitive
individualized measures offered as appropriate, as reasonably
available, without unreasonably burdening a party, and without fee or
charge to the complainant or respondent to:
(1) Restore or preserve that party's access to the recipient's
education program or activity, including temporary measures that burden
a respondent imposed for non-punitive and non-disciplinary reasons and
that are designed to protect the safety of the complainant or the
recipient's educational environment, or deter the respondent from
engaging in sex-based harassment; or
(2) Provide support during the recipient's grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46, or during the
informal resolution process under Sec. 106.44(k).
Title IX means Title IX of the Education Amendments of 1972 (Pub.
L. 92-318; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), as
amended.
Sec. 106.3 [Amended]
0
4. Section 106.3 is amended by removing paragraphs (c) and (d).
0
5. Section 106.6 is amended by:
0
a. Revising paragraphs (b), (e), and (g).
0
b. Removing paragraph (h).
The revisions read as follows:
Sec. 106.6 Effect of other requirements and preservation of rights.
* * * * *
(b) Effect of State or local law or other requirements. The
obligation to comply with this part is not obviated or alleviated by
any State or local law or other requirement. Nothing in this part would
preempt a State or local law that does not conflict with this part and
that provides greater protections against sex discrimination.
* * * * *
(e) Effect of Section 444 of General Education Provisions Act
(GEPA)/Family Educational Rights and Privacy Act. The obligation to
comply with this part is not obviated or alleviated by the Family
Educational Rights and Privacy Act, 20 U.S.C. 1232g, or its
implementing regulations, 34 CFR part 99.
* * * * *
(g) Exercise of rights by parents, guardians, or other authorized
legal representatives. Nothing in this part may be read in derogation
of any legal right of a parent, guardian, or other authorized legal
representative to act on behalf of a complainant, respondent, or other
person, subject to paragraph (e) of this section, including but not
limited to making a complaint through the recipient's grievance
procedures for complaints of sex discrimination.
0
6. Section 106.8 is revised to read as follows:
Sec. 106.8 Designation of coordinator, adoption and publication of
nondiscrimination policy and grievance procedures, notice of
nondiscrimination, training, and recordkeeping.
(a) Designation of a Title IX Coordinator.--(1) Title IX
Coordinator. Each recipient must designate and authorize at least one
employee, referred to herein as the Title IX Coordinator, to coordinate
its efforts to comply with its responsibilities under this part.
(2) Delegation to designees. As appropriate, the recipient may
assign one or more designees to carry out some of the recipient's
responsibilities for compliance with this part, but one Title IX
Coordinator must retain ultimate oversight over those responsibilities.
(b) Adoption and publication of nondiscrimination policy and
grievance procedures.--(1) Nondiscrimination policy. Each recipient
must adopt and publish a policy stating that the recipient does not
discriminate on the basis of sex and prohibits sex discrimination in
any education program or activity that it operates, as required by
Title IX and this part, including in admission (unless subpart C of
this part does not apply) and employment.
(2) Grievance procedures. A recipient must adopt and publish
grievance procedures consistent with the requirements of Sec. 106.45,
and if applicable Sec. 106.46, that provide for the prompt and
equitable resolution of complaints made by students, employees, or
third parties who are participating or attempting to
[[Page 41570]]
participate in the recipient's education program or activity, or by the
Title IX Coordinator, alleging any action that would be prohibited by
Title IX and this part.
(c) Notice of nondiscrimination. A recipient must provide a notice
of nondiscrimination to students; parents, guardians, or other
authorized legal representatives of elementary school and secondary
school students; employees; applicants for admission and employment;
and all unions and professional organizations holding collective
bargaining or professional agreements with the recipient.
(1) Contents of notice of nondiscrimination. The notice of
nondiscrimination must include the following elements:
(i) A statement that the recipient does not discriminate on the
basis of sex and prohibits sex discrimination in any education program
or activity that it operates, as required by Title IX and this part,
including in admission (unless subpart C of this part does not apply)
and employment;
(ii) A statement that inquiries about the application of Title IX
and this part to the recipient may be referred to the recipient's Title
IX Coordinator, to the Office for Civil Rights, or to both;
(iii) The name or title, office address, email address, and
telephone number of the recipient's Title IX Coordinator;
(iv) How to locate the recipient's nondiscrimination policy under
paragraph (b)(1) of this section; and
(v) How to report information about conduct that may constitute sex
discrimination under Title IX, how to make a complaint of sex
discrimination under this part, and how to locate the recipient's
grievance procedures under paragraph(b)(2) of this section, Sec.
106.45, and if applicable Sec. 106.46.
(2) Publication of notice of nondiscrimination. (i) Each recipient
must prominently include all elements of its notice of
nondiscrimination set out in paragraphs (c)(1)(i) through (v) of this
section on its website and in each handbook, catalog, announcement,
bulletin, and application form that it makes available to persons
entitled to notice under paragraph (c) of this section, or which are
otherwise used in connection with the recruitment of students or
employees.
(ii) If necessary, due to the format or size of any publication
under paragraph (c)(2) of this section, the recipient may instead
comply with paragraph (c)(2) of this section by including in those
publications a statement that the recipient prohibits sex
discrimination in any education program or activity that it operates
and that individuals may report concerns or questions to the Title IX
Coordinator, and providing the location of the notice on the
recipient's website.
(iii) A recipient must not use or distribute a publication stating
that the recipient treats applicants, students, or employees
differently on the basis of sex, except as such treatment is permitted
by Title IX or this part.
(d) Training. The recipient must ensure that the persons described
below receive training related to their responsibilities as follows.
This training must not rely on sex stereotypes.
(1) All employees. All employees must be trained on:
(i) The recipient's obligation to address sex discrimination in its
education program or activity;
(ii) The scope of conduct that constitutes sex discrimination under
this part, including the definition of sex-based harassment; and
(iii) All applicable notification and information requirements
under Sec. Sec. 106.40(b)(2) and 106.44.
(2) Investigators, decisionmakers, and other persons who are
responsible for implementing the recipient's grievance procedures or
have the authority to modify or terminate supportive measures. In
addition to the training requirements in paragraph (d)(1) of this
section, all investigators, decisionmakers, and other persons who are
responsible for implementing the recipient's grievance procedures or
have the authority to modify or terminate supportive measures under
Sec. 106.44(g)(4) must be trained on the following topics to the
extent related to their responsibilities:
(i) The recipient's obligations under Sec. 106.44;
(ii) The recipient's grievance procedures under Sec. 106.45, and
if applicable Sec. 106.46;
(iii) How to serve impartially, including by avoiding prejudgment
of the facts at issue, conflicts of interest, and bias; and
(iv) The meaning and application of the term relevant in relation
to questions and evidence, and the types of evidence that are
impermissible regardless of relevance under Sec. 106.45, and if
applicable Sec. 106.46.
(3) Facilitators of informal resolution process. In addition to the
training requirements in paragraph (d)(1) of this section, all
facilitators of an informal resolution process under Sec. 106.44(k)
must be trained on the rules and practices associated with the
recipient's informal resolution process and on how to serve
impartially, including by avoiding conflicts of interest and bias.
(4) Title IX Coordinator and designees. In addition to the training
requirements in paragraphs (d)(1) through (3) of this section, the
Title IX Coordinator and any designees under paragraph (a) of this
section must be trained on their specific responsibilities under
paragraph (a) of this section, Sec. Sec. 106.40(b)(3), 106.44(f),
106.44(g), the recipient's recordkeeping system and the requirements of
paragraph (f) of this section, and any other training necessary to
coordinate the recipient's compliance with Title IX.
(e) Students with disabilities. If a complainant or respondent is
an elementary or secondary student with a disability, the Title IX
Coordinator must consult with the student's Individualized Education
Program (IEP) team, 34 CFR 300.321, if any, or the group of persons
responsible for the student's placement decision under 34 CFR 104.35(c)
(Section 504 team), if any, to help ensure that the recipient complies
with the requirements of the Individuals with Disabilities Education
Act, 20 U.S.C. 1400 et seq., and Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. 794, throughout the recipient's implementation of
grievance procedures under Sec. 106.45, and if applicable Sec.
106.46. If a complainant or respondent is a postsecondary student with
a disability, the Title IX Coordinator may consult, as appropriate,
with the individual or office that the recipient has designated to
provide support to students with disabilities to help comply with
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794.
(f) Recordkeeping. A recipient must maintain for a period of at
least seven years:
(1) For each complaint of sex discrimination, records documenting
the informal resolution process under Sec. 106.44(k) or the grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, and the
resulting outcome.
(2) For each incident of conduct that may constitute sex
discrimination under Title IX of which the Title IX Coordinator was
notified, records documenting the actions the recipient took to meet
its obligations under Sec. 106.44.
(3) All materials used to provide training under paragraph (d) of
this section. A recipient must make these training materials publicly
available on its website, or if the recipient does not maintain a
website the recipient must make these materials available upon request
for inspection by members of the public.
[[Page 41571]]
(4) All records documenting the actions the recipient took to meet
its obligations under Sec. Sec. 106.40 and 106.57.
0
7. Section 106.10 is added to subpart B to read as follows:
Sec. 106.10 Scope.
Discrimination on the basis of sex includes discrimination on the
basis of sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity.
0
8. Section 106.11 is revised to read as follows:
Sec. 106.11 Application.
Except as provided in this subpart, this part applies to every
recipient and to all sex discrimination occurring under a recipient's
education program or activity in the United States. For purposes of
this section, conduct that occurs under a recipient's education program
or activity includes but is not limited to conduct that occurs in a
building owned or controlled by a student organization that is
officially recognized by a postsecondary institution, and conduct that
is subject to the recipient's disciplinary authority. A recipient has
an obligation to address a sex-based hostile environment under its
education program or activity, even if sex-based harassment
contributing to the hostile environment occurred outside the
recipient's education program or activity or outside the United States.
0
9. Section 106.15 is amended by revising paragraph (b) to read as
follows:
Sec. 106.15 Admissions.
* * * * *
(b) Administratively separate units. For purposes only of this
section and subpart C, each administratively separate unit shall be
deemed to be an educational institution.
* * * * *
Sec. 106.16 [Removed]
0
10. Section 106.16 is removed.
Sec. 106.17 [Removed]
0
11. Section 106.17 is removed.
Sec. 106.18 [Redesignated as Sec. 106.16]
0
12. Section 106.18 is redesignated as Sec. 106.16.
0
13. Section 106.21 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 106.21 Admissions.
(a) Status generally. No person shall, on the basis of sex, be
denied admission, or be subjected to discrimination in admission, by
any recipient to which this subpart applies.
* * * * *
(c) Parental, family, or marital status; pregnancy or related
conditions. In determining whether a person satisfies any policy or
criterion for admission, or in making any offer of admission, a
recipient to which this subpart applies:
(1) Must treat pregnancy or related conditions or any temporary
disability resulting therefrom in the same manner and under the same
policies as any other temporary disability or physical condition; and
(2) Must not:
(i) Adopt or apply any policy, practice, or procedure concerning
the current, potential, or past parental, family, or marital status of
a student or applicant that treats persons differently on the basis of
sex;
(ii) Discriminate against any person on the basis of current,
potential, or past pregnancy or related conditions, or establish or
follow any policy, practice, or procedure that so discriminates; and
(iii) Make pre-admission inquiry as to the marital status of an
applicant for admission, including whether such applicant is ``Miss or
Mrs.'' A recipient may ask an applicant to self-identify their sex, but
only if this question is asked of all applicants and if the response is
not used as a basis for discrimination prohibited by this part.
Sec. 106.30 [Removed]
0
14. Section 106.30 is removed.
0
15. Section 106.31 is amended by revising paragraph (a) to read as
follows:
Sec. 106.31 Education programs or activities.
(a) General. (1) Except as provided elsewhere in this part, no
person shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or otherwise be subjected to discrimination
under any academic, extracurricular, research, occupational training,
or other education program or activity operated by a recipient that
receives Federal financial assistance.
(2) In the limited circumstances in which Title IX or this part
permits different treatment or separation on the basis of sex, a
recipient must not carry out such different treatment or separation in
a manner that discriminates on the basis of sex by subjecting a person
to more than de minimis harm, unless otherwise permitted by Title IX or
this part. Adopting a policy or engaging in a practice that prevents a
person from participating in an education program or activity
consistent with the person's gender identity subjects a person to more
than de minimis harm on the basis of sex.
(3) This subpart does not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of:
(i) A recipient to which subpart C does not apply; or
(ii) An entity, not a recipient, to which subpart C would not apply
if the entity were a recipient.
* * * * *
0
16. Section 106.40 is revised to read as follows:
Sec. 106.40 Parental, family, or marital status; pregnancy or related
conditions.
(a) Status generally. A recipient must not adopt or apply any
policy, practice, or procedure concerning a student's current,
potential, or past parental, family, or marital status that treats
students differently on the basis of sex.
(b) Pregnancy or related conditions.--(1) Nondiscrimination. A
recipient must not discriminate in its education program or activity
against any student based on the student's current, potential, or past
pregnancy or related conditions. A recipient may permit a student based
on pregnancy or related conditions to participate voluntarily in a
separate portion of its education program or activity provided the
recipient ensures that the separate portion is comparable to that
offered to students who are not pregnant and do not have related
conditions.
(2) Requirement for recipient to provide information. A recipient
must ensure that when any employee is informed of a student's pregnancy
or related conditions by the student or a person who has a legal right
to act on behalf of the student, the employee promptly informs that
person of how the person may notify the Title IX Coordinator of the
student's pregnancy or related conditions for assistance and provides
contact information for the Title IX Coordinator, unless the employee
reasonably believes the Title IX Coordinator has already been notified.
(3) Specific actions to prevent discrimination and ensure equal
access. Once a student, or a person who has a legal right to act on
behalf of the student, notifies the Title IX Coordinator of the
student's pregnancy or related conditions, the Title IX Coordinator
must promptly:
(i) Inform the student, and if applicable the person who notified
the Title IX Coordinator, of the recipient's obligations to:
(A) Prohibit sex discrimination under this part, including sex-
based harassment;
(B) Provide the student with the option of reasonable modifications
to the recipient's policies, practices, or procedures because of
pregnancy or
[[Page 41572]]
related conditions, under paragraphs (b)(3)(ii) and (b)(4) of this
section;
(C) Allow access, on a voluntary basis, to any separate and
comparable portion of the recipient's education program or activity
under paragraph (b)(1) of this section;
(D) Allow a voluntary leave of absence under paragraph (b)(3)(iii)
of this section;
(E) Ensure the availability of lactation space under paragraph
(b)(3)(iv) of this section; and
(F) Maintain grievance procedures that provide for the prompt and
equitable resolution of complaints of sex discrimination, including
sex-based harassment, under Sec. 106.45, and if applicable Sec.
106.46.
(ii) Provide the student with voluntary reasonable modifications to
the recipient's policies, practices, or procedures because of pregnancy
or related conditions, under paragraph (b)(4) of this section.
(iii) Allow the student a voluntary leave of absence from the
recipient's education program or activity to cover, at minimum, the
period of time deemed medically necessary by the student's physician or
other licensed healthcare provider. To the extent that a recipient
maintains a leave policy for students that allows a greater period of
time than the medically necessary period, the recipient must permit the
student to take leave under that policy instead if the student so
chooses. Upon the student's return to the recipient's education program
or activity, the student must be reinstated to the academic status and,
as practicable, to the extracurricular status that the student held
when the leave began.
(iv) Ensure the availability of a lactation space, which must be a
space other than a bathroom, that is clean, shielded from view, free
from intrusion from others, and may be used by a student for expressing
breast milk or breastfeeding as needed.
(4) Reasonable modifications for students because of pregnancy or
related conditions. Reasonable modifications to the recipient's
policies, practices, or procedures for a student because of pregnancy
or related conditions, for purposes of this section:
(i) Must be provided on an individualized and voluntary basis
depending on the student's needs when necessary to prevent
discrimination and ensure equal access to the recipient's education
program or activity, unless the recipient can demonstrate that making
the modification would fundamentally alter the recipient's education
program or activity. A fundamental alteration is a change that is so
significant that it alters the essential nature of the recipient's
education program or activity;
(ii) Must be effectively implemented, coordinated, and documented
by the Title IX Coordinator; and
(iii) May include but are not limited to breaks during class to
attend to related health needs, expressing breast milk, or
breastfeeding; intermittent absences to attend medical appointments;
access to online or other homebound education; changes in schedule or
course sequence; extension of time for coursework and rescheduling of
tests and examinations; counseling; changes in physical space or
supplies (for example, access to a larger desk or a footrest); elevator
access; or other appropriate changes to policies, practices, or
procedures.
(5) Comparable treatment to temporary disabilities or conditions.
To the extent not otherwise addressed in paragraph (b)(3) of this
section, a recipient must treat pregnancy or related conditions or any
temporary disability resulting therefrom in the same manner and under
the same policies as any other temporary disability or physical
condition with respect to any medical or hospital benefit, service,
plan, or policy the recipient administers, operates, offers, or
participates in with respect to students admitted to the recipient's
education program or activity.
(6) Certification to participate. A recipient may not require a
student who is pregnant or has related conditions to provide
certification from a physician or other licensed healthcare provider
that the student is physically able to participate in the recipient's
class, program, or extracurricular activity unless:
(i) The certified level of physical ability or health is necessary
for participation in the class, program, or extracurricular activity;
(ii) The recipient requires such certification of all students
participating in the class, program, or extracurricular activity; and
(iii) The information obtained is not used as a basis for
discrimination prohibited by this part.
Sec. 106.41 [Amended]
0
17. Section 106.41 is amended by removing paragraph (d).
0
18. Section 106.44 is revised to read as follows:
Sec. 106.44 Action by a recipient to operate its education program or
activity free from sex discrimination.
(a) General. A recipient must take prompt and effective action to
end any sex discrimination that has occurred in its education program
or activity, prevent its recurrence, and remedy its effects. To ensure
that it can satisfy this obligation, a recipient must comply with this
section.
(b) Monitoring. A recipient must:
(1) Require its Title IX Coordinator to monitor the recipient's
education program or activity for barriers to reporting information
about conduct that may constitute sex discrimination under Title IX;
and
(2) Take steps reasonably calculated to address such barriers.
(c) Notification requirements. (1) An elementary school or
secondary school recipient must require all of its employees who are
not confidential employees to notify the Title IX Coordinator when the
employee has information about conduct that may constitute sex
discrimination under Title IX.
(2) All other recipients must, at a minimum, require:
(i) Any employee who is not a confidential employee and who has
authority to institute corrective measures on behalf of the recipient
to notify the Title IX Coordinator when the employee has information
about conduct that may constitute sex discrimination under Title IX;
(ii) Any employee who is not a confidential employee and who has
responsibility for administrative leadership, teaching, or advising in
the recipient's education program or activity to notify the Title IX
Coordinator when the employee has information about a student being
subjected to conduct that may constitute sex discrimination under Title
IX;
(iii) Any employee who is not a confidential employee and who has
responsibility for administrative leadership, teaching, or advising in
the recipient's education program or activity and has information about
an employee being subjected to conduct that may constitute sex
discrimination under Title IX to either:
(A) Notify the Title IX Coordinator when the employee has
information about an employee being subjected to conduct that may
constitute sex discrimination under Title IX; or
(B) Provide the contact information of the Title IX Coordinator and
information about how to report sex discrimination to any person who
provides the employee with the information; and
(iv) All other employees who are not confidential employees, if
any, to either:
(A) Notify the Title IX Coordinator when the employee has
information
[[Page 41573]]
about conduct that may constitute sex discrimination under Title IX; or
(B) Provide the contact information of the Title IX Coordinator and
information about how to report sex discrimination to any person who
provides the employee with information about conduct that may
constitute sex discrimination under Title IX.
(3) A postsecondary institution must make a fact-specific inquiry
to determine whether the requirements of paragraph (c)(2) of this
section apply to a person who is both a student and an employee of the
postsecondary institution. In making this determination, a
postsecondary institution must, at a minimum, consider whether the
person's primary relationship with the postsecondary institution is to
receive an education and whether the person learns of conduct that may
constitute sex discrimination under Title IX in the postsecondary
institution's education program or activity while performing
employment-related work.
(4) The requirements of paragraphs (c)(1) and (2) of this section
do not apply when the only employee with information about conduct that
may constitute sex discrimination under Title IX is the employee-
complainant.
(d) Confidential employee requirements. (1) A recipient must notify
all participants in the recipient's education program or activity of
the identity of any confidential employee.
(2) A recipient must require a confidential employee to explain
their confidential status to any person who informs the confidential
employee of conduct that may constitute sex discrimination under Title
IX and must provide that person with contact information for the
recipient's Title IX Coordinator and explain how to report information
about conduct that may constitute sex discrimination under Title IX.
(e) Public awareness events. When a postsecondary institution's
Title IX Coordinator is notified of information about conduct that may
constitute sex-based harassment under Title IX that was provided by a
person during a public event held on the postsecondary institution's
campus or through an online platform sponsored by a postsecondary
institution to raise awareness about sex-based harassment associated
with a postsecondary institution's education program or activity, the
postsecondary institution is not obligated to act in response to this
information under this section, Sec. 106.45, or Sec. 106.46, unless
the information reveals an immediate and serious threat to the health
or safety of students or other persons in the postsecondary
institution's community. However, in all cases the postsecondary
institution must use this information to inform its efforts to prevent
sex-based harassment, including by providing tailored training to
address alleged sex-based harassment in a particular part of its
education program or activity or at a specific location when
information indicates there may be multiple incidents of sex-based
harassment.
(f) Title IX Coordinator requirements. A recipient must require its
Title IX Coordinator to take the following steps upon being notified of
conduct that may constitute sex discrimination under Title IX:
(1) Treat the complainant and respondent equitably;
(2)(i) Notify the complainant of the grievance procedures under
Sec. 106.45, and if applicable Sec. 106.46; and
(ii) If a complaint is made, notify the respondent of the
applicable grievance procedures and notify the parties of the informal
resolution process under this section if available and appropriate;
(3) Offer and coordinate supportive measures under paragraph (g) of
this section, as appropriate, to the complainant and respondent to
restore or preserve that party's access to the recipient's education
program or activity;
(4) In response to a complaint, initiate the grievance procedures
or informal resolution process under Sec. 106.45, and if applicable
Sec. 106.46;
(5) In the absence of a complaint or informal resolution process,
determine whether to initiate a complaint of sex discrimination that
complies with the grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, if necessary to address conduct that may
constitute sex discrimination under Title IX in the recipient's
education program or activity; and
(6) Take other appropriate prompt and effective steps to ensure
that sex discrimination does not continue or recur within the
recipient's education program or activity, in addition to remedies
provided to an individual complainant.
(g) Supportive measures. Upon being notified of conduct that may
constitute sex discrimination under Title IX, a Title IX Coordinator
must offer supportive measures, as appropriate, to the complainant or
respondent to the extent necessary to restore or preserve that party's
access to the recipient's education program or activity. For
allegations of sex discrimination, other than sex-based harassment or
retaliation, a recipient's provision of supportive measures would not
require the recipient, its employee, or other person authorized to
provide aid, benefit or services on the recipient's behalf to alter the
allegedly discriminatory conduct for the purpose of providing a
supportive measure.
(1) Supportive measures may vary depending on what the recipient
deems to be available and reasonable. These measures may include but
are not limited to: counseling; extensions of deadlines and other
course-related adjustments; campus escort services; increased security
and monitoring of certain areas of the campus; restrictions on contact
between the parties; leaves of absence; voluntary or involuntary
changes in class, work, housing, or extracurricular or any other
activity, regardless of whether there is or is not a comparable
alternative; and training and education programs related to sex-based
harassment.
(2) Supportive measures that burden a respondent may be imposed
only during the pendency of a recipient's grievance procedures under
Sec. 106.45, and if applicable Sec. 106.46, and must be terminated at
the conclusion of those grievance procedures. These measures must be no
more restrictive of the respondent than is necessary to restore or
preserve the complainant's access to the recipient's education program
or activity. A recipient may not impose such measures for punitive or
disciplinary reasons.
(3) For supportive measures other than those that burden a
respondent, a recipient may, as appropriate, modify or terminate
supportive measures at the conclusion of the grievance procedures under
Sec. 106.45, and if applicable Sec. 106.46, or at the conclusion of
the informal resolution process under paragraph (k) of this section, or
the recipient may continue them beyond that point.
(4) A recipient must provide a complainant or respondent affected
by a decision to provide, deny, modify, or terminate supportive
measures with a timely opportunity to seek modification or reversal of
the recipient's decision by an appropriate, impartial employee. The
impartial employee must be someone other than the employee who made the
decision being challenged and must have authority to modify or reverse
the decision, if appropriate. A recipient must make a fact-specific
inquiry to determine what constitutes a timely opportunity for seeking
modification or reversal of a supportive measure. If the supportive
measure burdens the respondent, the initial opportunity to seek
modification or reversal of the recipient's decision must be provided
before the measure is imposed or, if
[[Page 41574]]
necessary under the circumstances, as soon as possible after the
measure has taken effect. A recipient must also provide a complainant
or respondent affected by a supportive measure with the opportunity to
seek additional modification or termination of such supportive measure
if circumstances change materially.
(5) A recipient must ensure that it does not disclose information
about any supportive measures to persons other than the complainant or
respondent unless necessary to provide the supportive measure. A
recipient may inform a party of supportive measures provided to or
imposed on another party only if necessary to restore or preserve that
party's access to the education program or activity.
(6) Under paragraph (f)(3) of this section, the Title IX
Coordinator is responsible for offering and coordinating supportive
measures.
(7)(i) If the complainant or respondent is an elementary or
secondary student with a disability, the Title IX Coordinator must
consult with the Individualized Education Program (IEP) team, 34 CFR
300.321, if any, or the group of persons responsible for the student's
placement decision under 34 CFR 104.35(c) (Section 504 team), if any,
to help ensure the recipient complies with the requirements of the
Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.,
and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, in
the implementation of supportive measures.
(ii) If the complainant or respondent is a postsecondary student
with a disability, the Title IX Coordinator may consult, as
appropriate, with the individual or office that the recipient has
designated to provide supports to students with disabilities to help
ensure that the recipient complies with Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794, in the implementation of
supportive measures.
(h) Emergency removal. Nothing in this part precludes a recipient
from removing a respondent from the recipient's education program or
activity on an emergency basis, provided that the recipient undertakes
an individualized safety and risk analysis, determines that an
immediate and serious threat to the health or safety of students,
employees, or other persons arising from the allegations of sex
discrimination justifies removal, and provides the respondent with
notice and an opportunity to challenge the decision immediately
following the removal. This provision must not be construed to modify
any rights under the Individuals with Disabilities Education Act, 20
U.S.C. 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794, or Title II of the Americans with Disabilities Act of 1990,
42 U.S.C. 12131-12134.
(i) Administrative leave. Nothing in this part precludes a
recipient from placing an employee respondent on administrative leave
from employment responsibilities during the pendency of the recipient's
grievance procedures. This provision must not be construed to modify
any rights under Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794, or Title II of the Americans with Disabilities Act of 1990,
42 U.S.C. 12131-12134.
(j) Recipient prohibitions. When conducting an informal resolution
process under paragraph (k) of this section, implementing grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, or
requiring a Title IX Coordinator to take other appropriate steps under
paragraph (f)(6) of this section, a recipient must not disclose the
identity of a party, witness, or other participant except in the
following circumstances:
(1) When the party, witness, or other participant has provided
prior written consent to disclose their identity;
(2) When permitted under the Family Educational Rights and Privacy
Act, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part 99;
(3) As required by law; or
(4) To carry out the purposes of this part, including action taken
to address conduct that may constitute sex discrimination under Title
IX in the recipient's education program or activity.
(k) Discretion to offer informal resolution in some circumstances.
(1) At any time prior to determining whether sex discrimination
occurred under Sec. 106.45, and if applicable Sec. 106.46, a
recipient may offer to a complainant and respondent an informal
resolution process, unless there are allegations that an employee
engaged in sex discrimination toward a student or such a process would
conflict with Federal, State or local law. A recipient that provides
the parties an informal resolution process must, to the extent
necessary, also require its Title IX Coordinator to take other
appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur within the recipient's
education program or activity.
(i) A recipient has discretion to determine whether it is
appropriate to offer an informal resolution process when it receives
information about conduct that may constitute sex discrimination under
Title IX or a complaint of sex discrimination is made, and may decline
to offer informal resolution despite one or more of the parties'
wishes.
(ii) Circumstances when a recipient may decline to allow informal
resolution include but are not limited to when the recipient determines
that the alleged conduct would present a future risk of harm to others.
(2) A recipient must not require or pressure the parties to
participate in an informal resolution process. The recipient must
obtain the parties' voluntary consent to the informal resolution
process and must not require waiver of the right to an investigation
and adjudication of a complaint as a condition of enrollment or
continuing enrollment, or employment or continuing employment, or
exercise of any other right.
(3) Before initiation of an informal resolution process, the
recipient must provide to the parties notice that explains:
(i) The allegations;
(ii) The requirements of the informal resolution process;
(iii) That, prior to agreeing to a resolution, any party has the
right to withdraw from the informal resolution process and to initiate
or resume the recipient's grievance procedures;
(iv) That the parties' agreement to a resolution at the conclusion
of the informal resolution process would preclude the parties from
initiating or resuming grievance procedures arising from the same
allegations;
(v) The potential terms that may be requested or offered in an
informal resolution agreement;
(vi) Which records will be maintained and could be shared;
(vii) That if the recipient initiates or resumes its grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, the
recipient or a party must not access, consider, disclose, or otherwise
use information, including records, obtained solely through an informal
resolution process as part of the investigation or determination of the
outcome of the complaint; and
(viii) That, when applicable, and if the recipient resumes its
grievance procedures, the informal resolution facilitator could serve
as a witness for purposes other than providing information obtained
solely through the informal resolution process.
(4) The facilitator for the informal resolution process must not be
the same person as the investigator or the decisionmaker in the
recipient's grievance procedures. Any person designated by a recipient
to facilitate an informal resolution process must not
[[Page 41575]]
have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent. Any
person facilitating informal resolution must receive training under
Sec. 106.8(d)(3).
(5) Potential terms that may be included in an informal resolution
agreement include but are not limited to:
(i) Restrictions on contact; and
(ii) Restrictions on the respondent's participation in one or more
of the recipient's programs or activities or attendance at specific
events, including restrictions the recipient could have imposed as
remedies or disciplinary sanctions had the recipient determined that
sex discrimination occurred under the recipient's grievance procedures.
0
19. Section 106.45 is revised to read as follows:
Sec. 106.45 Grievance procedures for the prompt and equitable
resolution of complaints of sex discrimination.
(a)(1) General. For purposes of addressing complaints of sex
discrimination, a recipient's prompt and equitable grievance procedures
must be in writing and include provisions that incorporate the
requirements of this section. The requirements related to a respondent
apply only to sex discrimination complaints alleging that a person
violated the recipient's prohibition on sex discrimination. When a sex
discrimination complaint alleges that a recipient's policy or practice
discriminates on the basis of sex, the recipient is not considered a
respondent.
(a)(2) Complaint. The following persons have a right to make a
complaint of sex discrimination, including complaints of sex-based
harassment, requesting that the recipient initiate its grievance
procedures:
(i) A complainant;
(ii) A person who has a right to make a complaint on behalf of a
complainant under Sec. 106.6(g);
(iii) The Title IX Coordinator;
(iv) With respect to complaints of sex discrimination other than
sex-based harassment, any student or employee; or third party
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred.
(b) Basic requirements for grievance procedures. A recipient's
grievance procedures must:
(1) Treat complainants and respondents equitably;
(2) Require that any person designated as a Title IX Coordinator,
investigator, or decisionmaker not have a conflict of interest or bias
for or against complainants or respondents generally or an individual
complainant or respondent. The decisionmaker may be the same person as
the Title IX Coordinator or investigator;
(3) Include a presumption that the respondent is not responsible
for the alleged conduct until a determination whether sex
discrimination occurred is made at the conclusion of the recipient's
grievance procedures for complaints of sex discrimination;
(4) Establish reasonably prompt timeframes for the major stages of
the grievance procedures, including a process that allows for the
reasonable extension of timeframes on a case-by-case basis for good
cause with notice to the parties that includes the reason for the
delay. Major stages include, for example, evaluation (i.e., the
recipient's determination of whether to dismiss or investigate a
complaint of sex discrimination); investigation; determination; and
appeal, if any;
(5) Take reasonable steps to protect the privacy of the parties and
witnesses during the pendency of a recipient's grievance procedures,
provided that the steps do not restrict the ability of the parties to
obtain and present evidence, including by speaking to witnesses,
subject to Sec. 106.71; consult with a family member, confidential
resource, or advisor; prepare for a hearing, if one is offered; or
otherwise defend their interests;
(6) Require an objective evaluation of all relevant evidence,
consistent with the definition of relevant in Sec. 106.2--including
both inculpatory and exculpatory evidence--and provide that credibility
determinations must not be based on a person's status as a complainant,
respondent, or witness; and
(7) Exclude the following types of evidence, and questions seeking
that evidence, as impermissible (i.e., must not be accessed,
considered, disclosed, or otherwise used), regardless of whether they
are relevant:
(i) Evidence that is protected under a privilege as recognized by
Federal or State law, unless the person holding such privilege has
waived the privilege voluntarily in a manner permitted in the
recipient's jurisdiction;
(ii) A party's records that are made or maintained by a physician,
psychologist, or other recognized professional or paraprofessional in
connection with the provision of treatment to the party, unless the
recipient obtains that party's voluntary, written consent for use in
the recipient's grievance procedures; and
(iii) Evidence that relates to the complainant's sexual interests
or prior sexual conduct, unless evidence about the complainant's prior
sexual conduct is offered to prove that someone other than the
respondent committed the alleged conduct or is offered to prove consent
with evidence concerning specific incidents of the complainant's prior
sexual conduct with the respondent. The fact of prior consensual sexual
conduct between the complainant and respondent does not demonstrate or
imply the complainant's consent to the alleged sex-based harassment or
preclude determination that sex-based harassment occurred.
(c) Notice of allegations. Upon initiation of the recipient's
grievance procedures, a recipient must provide notice of the
allegations to the parties whose identities are known.
(1) The notice must include:
(i) The recipient's grievance procedures under this section, and if
applicable Sec. 106.46, and any informal resolution process under
Sec. 106.44(k);
(ii) Sufficient information available at the time to allow the
parties to respond to the allegations. Sufficient information includes
the identities of the parties involved in the incident, the conduct
alleged to constitute sex discrimination under Title IX, and the date
and location of the alleged incident, to the extent that information is
available to the recipient; and
(iii) A statement that retaliation is prohibited.
(2) If, in the course of an investigation, the recipient decides to
investigate additional allegations about the respondent's conduct
toward the complainant that are not included in the notice provided
under paragraph (c)(1) of this section or that are included in a
complaint that is consolidated under paragraph (e) of this section, the
recipient must provide notice of the additional allegations to the
parties whose identities are known.
(d) Dismissal of a complaint. (1) A recipient may dismiss a
complaint of sex discrimination made through its grievance procedures
under this section, and if applicable Sec. 106.46, for any of the
following reasons:
(i) The recipient is unable to identify the respondent after taking
reasonable steps to do so;
(ii) The respondent is not participating in the recipient's
education program or activity and is not employed by the recipient;
(iii) The complainant voluntarily withdraws any or all of the
allegations in the complaint and the recipient determines that without
the complainant's withdrawn allegations,
[[Page 41576]]
the conduct that remains alleged in the complaint, if any, would not
constitute sex discrimination under Title IX even if proven; or
(iv) The recipient determines the conduct alleged in the complaint,
even if proven, would not constitute sex discrimination under Title IX.
Prior to dismissing the complaint under this paragraph, the recipient
must make reasonable efforts to clarify the allegations with the
complainant.
(2) Upon dismissal, a recipient must promptly notify the
complainant of the basis for the dismissal. If the dismissal occurs
after the respondent has been notified of the allegations, then the
recipient must also notify the respondent of the dismissal and the
basis for the dismissal promptly following notification to the
complainant, or simultaneously if notification is in writing.
(3) A recipient must notify all parties that a dismissal may be
appealed, provide any party with an opportunity to appeal its dismissal
of a complaint, and must:
(i) Notify the parties when an appeal is filed and implement appeal
procedures equally for the parties;
(ii) Ensure that the decisionmaker for the appeal did not take part
in an investigation of the allegations or dismissal of the complaint;
(iii) Ensure that the decisionmaker for the appeal has been trained
as set out in Sec. 106.8(d)(2);
(iv) Provide the parties a reasonable and equal opportunity to make
a statement in support of, or challenging, the outcome; and
(v) Notify all parties of the result of the appeal and the
rationale for the result.
(4) A recipient that dismisses a complaint must, at a minimum:
(i) Offer supportive measures to the complainant as appropriate
under Sec. 106.44(g);
(ii) For dismissals under paragraphs (d)(1)(iii) or (iv) of this
section in which the respondent has been notified of the allegations,
offer supportive measures to the respondent as appropriate under Sec.
106.44(g); and
(iii) Require its Title IX Coordinator to take other appropriate
prompt and effective steps to ensure that sex discrimination does not
continue or recur within the recipient's education program or activity
under Sec. 106.44(f)(6).
(e) Consolidation of complaints. A recipient may consolidate
complaints of sex discrimination against more than one respondent, or
by more than one complainant against one or more respondents, or by one
party against another party, when the allegations of sex discrimination
arise out of the same facts or circumstances. If one of the complaints
to be consolidated is a complaint of sex-based harassment involving a
student complainant or student respondent at a postsecondary
institution, the grievance procedures for investigating and resolving
the consolidated complaint must comply with the requirements of this
section and Sec. 106.46. When more than one complainant or more than
one respondent is involved, references in this section and in Sec.
106.46 to a party, complainant, or respondent include the plural, as
applicable.
(f) Complaint investigation. A recipient must provide for adequate,
reliable, and impartial investigation of complaints. To do so, the
recipient must:
(1) Ensure that the burden is on the recipient--not on the
parties--to conduct an investigation that gathers sufficient evidence
to determine whether sex discrimination occurred;
(2) Provide an equal opportunity for the parties to present
relevant fact witnesses and other inculpatory and exculpatory evidence;
(3) Review all evidence gathered through the investigation and
determine what evidence is relevant and what evidence is impermissible
regardless of relevance, consistent with Sec. 106.2 and with paragraph
(b)(7) of this section; and
(4) Provide each party with a description of the evidence that is
relevant to the allegations of sex discrimination and not otherwise
impermissible, as well as a reasonable opportunity to respond.
(g) Evaluating allegations and assessing credibility. A recipient
must provide a process that enables the decisionmaker to adequately
assess the credibility of the parties and witnesses to the extent
credibility is both in dispute and relevant to evaluating one or more
allegations of sex discrimination.
(h) Determination of whether sex discrimination occurred. Following
an investigation and evaluation process under paragraphs (f) and (g) of
this section, the recipient must:
(1) Use the preponderance of the evidence standard of proof to
determine whether sex discrimination occurred, unless the recipient
uses the clear and convincing evidence standard of proof in all other
comparable proceedings, including proceedings relating to other
discrimination complaints, in which case the recipient may elect to use
that standard of proof in determining whether sex discrimination
occurred. Both standards of proof require the decisionmaker to evaluate
relevant evidence for its persuasiveness; if the decisionmaker is not
persuaded under the applicable standard by the evidence that sex
discrimination occurred, whatever the quantity of the evidence is, the
decisionmaker should not determine that sex discrimination occurred.
(2) Notify the parties of the outcome of the complaint, including
the determination of whether sex discrimination occurred under Title
IX, and the procedures and permissible bases for the complainant and
respondent to appeal, if applicable;
(3) If there is a determination that sex discrimination occurred,
as appropriate, require the Title IX Coordinator to provide and
implement remedies to a complainant or other person the recipient
identifies as having had equal access to the recipient's education
program or activity limited or denied by sex discrimination, and
require the Title IX Coordinator to take other appropriate prompt and
effective steps to ensure that sex discrimination does not continue or
recur within the recipient's education program or activity under Sec.
106.44(f)(6);
(4) Comply with this section, and if applicable Sec. 106.46,
before the imposition of any disciplinary sanctions against a
respondent; and
(5) Not discipline a party, witness, or others participating in a
recipient's grievance procedures for making a false statement or for
engaging in consensual sexual conduct based solely on the recipient's
determination of whether sex discrimination occurred.
(i) Additional provisions. If a recipient adopts additional
provisions as part of its grievance procedures for handling complaints
of sex discrimination, including sex-based harassment, such additional
provisions must apply equally to the parties.
(j) Informal resolution. In lieu of resolving a complaint through
the recipient's grievance procedures, the parties may instead elect to
participate in an informal resolution process under Sec. 106.44(k) if
provided by the recipient consistent with that paragraph.
(k) Provisions limited to sex-based harassment complaints. For
complaints alleging sex-based harassment, the grievance procedures
must:
(1) Describe the range of supportive measures available to
complainants and respondents under Sec. 106.44(g); and
(2) Describe the range of, or list, the possible disciplinary
sanctions and remedies that the recipient may impose following a
determination that sex-based harassment occurred.
[[Page 41577]]
Sec. 106.46 [Redesignated as Sec. 106.48]
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20. Section 106.46 is redesignated as Sec. 106.48.
0
21. Add a new Sec. 106.46 to subpart D to read as follows:
Sec. 106.46 Grievance procedures for the prompt and equitable
resolution of complaints of sex-based harassment involving student
complainants or student respondents at postsecondary institutions.
(a) General. A postsecondary institution's prompt and equitable
written grievance procedures for complaints of sex-based harassment
involving a student complainant or student respondent must include
provisions that incorporate the requirements of Sec. 106.45 and this
section.
(b) Student employees. When a complainant or respondent is both a
student and an employee of a postsecondary institution, the
postsecondary institution must make a fact-specific inquiry to
determine whether the requirements of this section apply. In making
this determination, a postsecondary institution must, at a minimum,
consider whether the party's primary relationship with the
postsecondary institution is to receive an education and whether the
alleged sex-based harassment occurred while the party was performing
employment-related work.
(c) Written notice of allegations. (1) Upon the initiation of the
postsecondary institution's sex-based harassment grievance procedures
under this section, a postsecondary institution must provide written
notice to the parties, whose identities are known, of:
(i) All information required under Sec. 106.45(c); and
(ii) Allegations potentially constituting sex-based harassment,
including the information required under Sec. 106.45(c)(1)(ii), with
sufficient time for the parties to prepare a response before any
initial interview.
(2) The written notice must also inform the parties that:
(i) The respondent is presumed not responsible for the alleged
conduct until a determination of whether sex-based harassment occurred
is made at the conclusion of the grievance procedures under this
section and that prior to the determination, the parties will have an
opportunity to present relevant evidence to a trained, impartial
decisionmaker;
(ii) They may have an advisor of their choice to serve in the role
set out in paragraph (e)(2) of this section, and that the advisor may
be, but is not required to be, an attorney;
(iii) They are entitled to receive access to relevant evidence or
to an investigative report that accurately summarizes this evidence as
set out in paragraph (e)(6) of this section; and
(iv) If applicable, any provision in the postsecondary
institution's code of conduct prohibits knowingly making false
statements or knowingly submitting false information during the
grievance procedure.
(3) To the extent the postsecondary institution has legitimate
concerns for the safety of any person as a result of providing this
notice, the postsecondary institution may reasonably delay providing
written notice of the allegations in order to address the safety
concern appropriately. Legitimate concerns must be based on
individualized safety and risk analysis and not on mere speculation or
stereotypes.
(d) Dismissal of a complaint. When dismissing a complaint alleging
sex-based harassment and involving a student complainant or a student
respondent, a postsecondary institution must:
(1) Provide the parties, simultaneously, with written notice of the
dismissal and the basis for the dismissal, if dismissing a complaint
under any of the bases in Sec. 106.45(d)(1); and
(2) Obtain the complainant's withdrawal in writing if dismissing a
complaint based on the complainant's voluntary withdrawal of the
complaint or allegations under Sec. 106.45(d)(1)(iii).
(e) Complaint investigation. When investigating a complaint
alleging sex-based harassment and throughout the postsecondary
institution's grievance procedures for complaints of sex-based
harassment involving a student complainant or a student respondent, a
postsecondary institution:
(1) Must provide, to a party whose participation is invited or
expected, written notice of the date, time, location, participants, and
purpose of all meetings, investigative interviews, or hearings with
sufficient time for the party to prepare to participate;
(2) Must provide the parties with the same opportunities to be
accompanied to any meeting or proceeding by the advisor of their
choice, who may be, but is not required to be, an attorney, and not
limit the choice or presence of the advisor for the complainant or
respondent in any meeting or grievance proceeding; however, the
postsecondary institution may establish restrictions regarding the
extent to which the advisor may participate in the grievance
procedures, as long as the restrictions apply equally to the parties;
(3) Must provide the parties with the same opportunities, if any,
to have persons other than the advisor of the parties' choice present
during any meeting or proceeding;
(4) Has discretion to determine whether the parties may present
expert witnesses as long as the determination applies equally to the
parties;
(5) Must allow for the reasonable extension of timeframes on a
case-by-case basis for good cause with written notice to the parties
that includes the reason for the delay; and
(6) Must provide each party and the party's advisor, if any, with
equitable access to the evidence that is relevant to the allegations of
sex-based harassment and not otherwise impermissible, consistent with
Sec. Sec. 106.2 and 106.45(b)(7), in the following manner:
(i) A postsecondary institution must provide either equitable
access to the relevant and not otherwise impermissible evidence, or to
the same written investigative report that accurately summarizes this
evidence. If the postsecondary institution provides an investigative
report, it must further provide the parties with equitable access to
the relevant and not otherwise impermissible evidence upon the request
of any party;
(ii) A postsecondary institution must provide the parties with a
reasonable opportunity to review and respond to the evidence as
provided under paragraph (6)(i) of this section prior to the
determination of whether sex-based harassment occurred. If a
postsecondary institution conducts a live hearing as part of its
grievance procedures, it must provide this opportunity to review the
evidence in advance of the live hearing; it is at the postsecondary
institution's discretion whether to provide this opportunity to respond
prior to the live hearing, during the live hearing, or both prior to
and during the live hearing;
(iii) A postsecondary institution must take reasonable steps to
prevent and address the parties' and their advisors' unauthorized
disclosure of information and evidence obtained solely through the sex-
based harassment grievance procedures; and
(iv) Compliance with paragraph (e)(6) of this section satisfies the
requirements of Sec. 106.45(f)(4).
(f) Evaluating allegations and assessing credibility.--(1) Process
for evaluating allegations and assessing credibility. A postsecondary
institution must provide a process as specified in this subpart that
enables the decisionmaker to adequately assess the credibility of the
parties and witnesses to the extent credibility is both in dispute and
relevant to evaluating one or more allegations of sex-based
[[Page 41578]]
harassment. This assessment of credibility includes either:
(i) Allowing the decisionmaker to ask the parties and witnesses,
during individual meetings with the parties or at a live hearing,
relevant and not otherwise impermissible questions under Sec. Sec.
106.2 and 106.45(b)(7) and follow-up questions, including questions
challenging credibility, before determining whether sex-based
harassment occurred and allowing each party to propose to the
decisionmaker or investigator relevant and not otherwise impermissible
questions under Sec. Sec. 106.2 and 106.45(b)(7) and follow-up
questions, including questions challenging credibility, that the party
wants asked of any party or witness and have those questions asked
during individual meetings with the parties or at a live hearing under
paragraph (g) of this section subject to the requirements in paragraph
(f)(3) of this section; or
(ii) When a postsecondary institution chooses to conduct a live
hearing, allowing each party's advisor to ask any party and any
witnesses all relevant and not otherwise impermissible questions under
Sec. Sec. 106.2 and 106.45(b)(7) and follow-up questions, including
questions challenging credibility, subject to the requirements under
paragraph (f)(3) of this section. Such questioning must never be
conducted by a party personally. If a postsecondary institution permits
advisor-conducted questioning and a party does not have an advisor who
can ask questions on their behalf, the postsecondary institution must
provide the party with an advisor of the postsecondary institution's
choice, without charge to the party, for the purpose of advisor-
conducting questioning. The advisor may be, but is not required to be,
an attorney.
(2) Compliance with Sec. 106.45(g). Compliance with paragraph
(f)(1)(i) or (ii) of this section satisfies the requirements of Sec.
106.45(g).
(3) Procedures for the decisionmaker to evaluate the questions and
limitations on questions. The decisionmaker must determine whether a
proposed question is relevant and not otherwise impermissible under
Sec. Sec. 106.2 and 106.45(b)(7), prior to the question being posed,
and must explain any decision to exclude a question as not relevant. If
a decisionmaker determines that a party's question is relevant and not
otherwise impermissible, then it must be asked except that a
postsecondary institution must not permit questions that are unclear or
harassing of the party being questioned. A postsecondary institution
may also impose other reasonable rules regarding decorum, provided they
apply equally to the parties.
(4) Refusal to respond to questions related to credibility. If a
party does not respond to questions related to their credibility, the
decisionmaker must not rely on any statement of that party that
supports that party's position. The decisionmaker must not draw an
inference about whether sex-based harassment occurred based solely on a
party's or witness's refusal to respond questions related to their
credibility.
(g) Live hearing procedures. A postsecondary institution's sex-
based harassment grievance procedures may, but need not, provide for a
live hearing. If a postsecondary institution chooses to conduct a live
hearing, it may conduct the live hearing with the parties physically
present in the same geographic location, but at the postsecondary
institution's discretion or upon the request of either party, it will
conduct the live hearing with the parties physically present in
separate locations with technology enabling the decisionmaker and
parties to simultaneously see and hear the party or the witness while
that person is speaking or communicating in another format. A
postsecondary institution must create an audio or audiovisual
recording, or transcript, of any live hearing and make it available to
the parties for inspection and review.
(h) Written determination of whether sex-based harassment occurred.
The postsecondary institution must provide the determination whether
sex-based harassment occurred in writing to the parties simultaneously.
(1) The written determination must include:
(i) A description of the alleged sex-based harassment;
(ii) Information about the policies and procedures that the
postsecondary institution used to evaluate the allegations;
(iii) The decisionmaker's evaluation of the relevant evidence and
determination of whether sex-based harassment occurred;
(iv) When the decisionmaker finds that sex-based harassment
occurred, any disciplinary sanctions the postsecondary institution will
impose on the respondent, and whether remedies other than the
imposition of disciplinary sanctions will be provided by the
postsecondary institution to the complainant and, to the extent
appropriate, other students identified by the postsecondary institution
to be experiencing the effects of the sex-based harassment; and
(v) The postsecondary institution's procedures for the complainant
and respondent to appeal.
(2) The determination regarding responsibility becomes final either
on the date that the postsecondary institution provides the parties
with the written determination of the result of the appeal, if an
appeal is filed, or if an appeal is not filed, the date on which an
appeal would no longer be considered timely.
(i) Appeals. (1) A postsecondary institution must offer the parties
an appeal from a determination that sex-based harassment occurred, and
from a postsecondary institution's dismissal of a complaint or any
allegations therein, on the following bases:
(i) Procedural irregularity that would change the determination of
whether sex-based harassment occurred in the matter;
(ii) New evidence that would change the outcome of the matter and
that was not reasonably available at the time the determination of
whether sex-based harassment occurred or dismissal was made; and
(iii) The Title IX Coordinator, investigator, or decisionmaker had
a conflict of interest or bias for or against complainants or
respondents generally or the individual complainant or respondent that
would change the outcome of the matter.
(2) A postsecondary institution may offer an appeal equally to the
parties on additional bases, as long as the additional bases are
available to all parties.
(3) As to all appeals, the postsecondary institution must comply
with the requirements in Sec. 106.45(d)(3)(i), (iv), and (v) in
writing.
(j) Informal resolution. If a postsecondary institution offers or
provides the parties to the grievance procedures under Sec. 106.45 and
under this section with an informal resolution process under Sec.
106.44(k), the postsecondary institution must inform the parties in
writing of the offer and their rights and responsibilities in the
informal resolution process and otherwise comply with the provisions of
Sec. 106.44(k)(3) in writing.
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22. Section 106.47 is added to subpart D to read as follows:
Sec. 106.47 Assistant Secretary review of sex-based harassment
complaints.
The Assistant Secretary will not deem a recipient to have violated
this part solely because the Assistant Secretary would have reached a
different determination than a recipient reached under Sec. 106.45,
and if applicable Sec. 106.46, based on an independent
[[Page 41579]]
weighing of the evidence in sex-based harassment complaints.
0
23. Section 106.51 is amended by revising paragraph (b)(6) to read as
follows:
Sec. 106.51 Employment.
* * * * *
(b) * * *
(6) Granting and return from leaves of absence, leave for pregnancy
or related conditions, leave for persons of either sex to care for
children or dependents, or any other leave;
* * * * *
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24. Section 106.57 is revised to read as follows:
Sec. 106.57 Parental, family, or marital status; pregnancy or related
conditions.
(a) Status generally. A recipient shall not adopt or apply any
policy, practice, or procedure, or take any employment action on the
basis of sex:
(1) Concerning the current, potential, or past parental, family, or
marital status of an employee or applicant for employment which treats
persons differently; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy or related conditions. A recipient shall not
discriminate against or exclude from employment any employee or
applicant for employment on the basis of current, potential, or past
pregnancy or related conditions.
(c) Comparable treatment to temporary disabilities or conditions. A
recipient shall treat pregnancy or related conditions or any temporary
disability resulting therefrom as any other temporary disability for
all job-related purposes, including commencement, duration and
extensions of leave, payment of disability income, accrual of seniority
and any other benefit or service, and reinstatement, and under any
fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an
employee with insufficient leave or accrued employment time to qualify
for leave under such a policy, a recipient shall treat pregnancy or
related conditions as a justification for a voluntary leave of absence
without pay for a reasonable period of time, at the conclusion of which
the employee shall be reinstated to the status held when the leave
began or to a comparable position, without decrease in rate of
compensation or loss of promotional opportunities, or any other right
or privilege of employment.
(e) Lactation time and space. (1) A recipient must provide
reasonable break time for an employee to express breast milk or
breastfeed as needed.
(2) A recipient must ensure the availability of a lactation space,
which must be a space other than a bathroom that is clean, shielded
from view, free from intrusion from others, and may be used by an
employee for expressing breast milk or breastfeeding as needed.
0
25. Section 106.60 is revised to read as follows:
Sec. 106.60 Pre-employment inquiries.
(a) Marital status. A recipient must not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss or Mrs.''
(b) Sex. A recipient may ask an applicant for employment to self-
identify their sex, but only if this question is asked of all
applicants and if the response is not used as a basis for
discrimination prohibited by this part.
0
26. Section 106.71 is revised to read as follows:
Sec. 106.71 Retaliation.
A recipient must prohibit retaliation in its education program or
activity. When a recipient receives information about conduct that may
constitute retaliation, the recipient is obligated to comply with Sec.
106.44. A recipient must initiate its grievance procedures upon
receiving a complaint alleging retaliation under Sec. 106.45. As set
out in Sec. 106.45(e), if the complaint is consolidated with a
complaint of sex-based harassment involving a student complainant or
student respondent at a postsecondary institution, the grievance
procedures initiated by the consolidated complaint must comply with the
requirements of Sec. Sec. 106.45 and 106.46. Prohibited retaliation
includes but is not limited to:
(a) Initiating a disciplinary process against a person for a code
of conduct violation that does not involve sex discrimination but
arises out of the same facts and circumstances as a complaint or
information reported about possible sex discrimination, for the purpose
of interfering with the exercise of any right or privilege secured by
Title IX or this part; or
(b) Peer retaliation.
0
27. Section 106.81 is revised to read as follows:
Sec. 106.81 Procedures.
The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 are hereby adopted and incorporated herein. These
procedures may be found at 34 CFR 100.6-100.11 and 34 CFR part 101.
[FR Doc. 2022-13734 Filed 7-11-22; 8:45 am]
BILLING CODE 4000-01-P