[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4030 Introduced in House (IH)]

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115th CONGRESS
  1st Session
                                H. R. 4030

 To amend the Department of Education Organization Act to codify into 
law the ``Revised Sexual Harassment Guidance: Harassment of Students by 
 School Employees, Other Students, or Third Parties'', issued January 
     19, 2001, by the Office for Civil Rights of the Department of 
 Education, as in effect on January 1, 2017; the Dear Colleague letter 
issued April 4, 2011, by the Office for Civil Rights of the Department 
of Education, as in effect on January 1, 2017; and the ``Questions and 
Answers on Title IX and Sexual Violence'' issued April 29, 2014, by the 
Office for Civil Rights of the Department of Education, as in effect on 
                            January 1, 2017.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 12, 2017

  Ms. Speier (for herself, Ms. Bonamici, Ms. DeLauro, Mr. DeSaulnier, 
 Mrs. Dingell, Mr. Ellison, Mr. Espaillat, Ms. Frankel of Florida, Ms. 
  Jackson Lee, Ms. Kuster of New Hampshire, Ms. Lee, Ms. Matsui, Mrs. 
 Napolitano, Ms. Norton, Mr. Panetta, Mr. Quigley, Ms. Roybal-Allard, 
Ms. Schakowsky, Mr. Takano, Ms. Wasserman Schultz, Ms. Maxine Waters of 
  California, Mrs. Carolyn B. Maloney of New York, Mr. Grijalva, Mr. 
 Scott of Virginia, Ms. Fudge, Ms. Shea-Porter, Mr. Courtney, and Mrs. 
Davis of California) introduced the following bill; which was referred 
            to the Committee on Education and the Workforce

_______________________________________________________________________

                                 A BILL


 
 To amend the Department of Education Organization Act to codify into 
law the ``Revised Sexual Harassment Guidance: Harassment of Students by 
 School Employees, Other Students, or Third Parties'', issued January 
     19, 2001, by the Office for Civil Rights of the Department of 
 Education, as in effect on January 1, 2017; the Dear Colleague letter 
issued April 4, 2011, by the Office for Civil Rights of the Department 
of Education, as in effect on January 1, 2017; and the ``Questions and 
Answers on Title IX and Sexual Violence'' issued April 29, 2014, by the 
Office for Civil Rights of the Department of Education, as in effect on 
                            January 1, 2017.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Title IX Protection Act''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Education has long been recognized as the great 
        equalizer in America.
            (2) The Congress believes that providing all students with 
        an educational environment free from discrimination is 
        extremely important. The sexual harassment of students, 
        including sexual violence, creates a hostile environment, 
        interferes with the right of students to receive an education 
        free from discrimination, and is a form of discrimination 
        prohibited by title IX of the Education Amendments of 1972.
            (3) Each school has a responsibility to promptly, 
        thoroughly, and fairly investigate when sexual harassment is 
        reported or observed by school employees.
            (4) Sexual harassment of students, including acts of sexual 
        violence, is a form of sex discrimination prohibited by title 
        IX of the Education Amendments of 1972.
            (5) In order to assist school districts, colleges, and 
        universities (hereinafter ``schools'') in meeting these 
        obligations, the Department of Education and its Office for 
        Civil Rights (OCR) issued a Dear Colleague letter on April 4, 
        2011 (2011 DCL), reminding schools that the requirements of 
        title IX pertaining to sexual harassment also cover sexual 
        violence, and that laid out the specific steps schools shall 
        take when responding to sexual violence.
            (6) The 2011 DCL supplemented the ``Revised Sexual 
        Harassment Guidance: Harassment of Students by School 
        Employees, Other Students, or Third Parties'', issued January 
        19, 2001 (2001 Guidance), by the OCR under the William 
        Jefferson Clinton Administration, and then reissued January 25, 
        2006, by the OCR under the George W. Bush Administration, by 
        providing additional guidance and practical examples regarding 
        the title IX requirements as they relate to sexual violence.
            (7) In responding to requests for technical assistance, OCR 
        determined that schools would benefit from additional guidance 
        concerning their obligations under title IX to address sexual 
        violence as a form of sexual harassment, and issued the 
        ``Questions and Answers on Title IX and Sexual Violence'' on 
        April 29, 2014 (2014 Q&A), to further clarify the legal 
        requirements and guidance articulated in the 2011 DCL and the 
        2001 Guidance. The 2014 Q&A included examples of proactive 
        efforts schools can take to prevent sexual violence and 
        remedies schools may use to end such conduct, prevent its 
        recurrence, and address its effects.
            (8) On September 7, 2017, Secretary of Education Betsy 
        DeVos announced that OCR would be opening up a formal notice 
        and comment period to replace the 2011 DCL.
            (9) On September 22, 2017, OCR rescinded both the 2011 DCL 
        and the 2014 Q&A, and released a new interim Q&A (2017 Interim 
        Guidance) for schools on how to investigate and adjudicate 
        allegations of campus sexual misconduct under Federal law.
            (10) Although it is Congress's view that title IX already 
        requires the elements laid out in the amendment made by this 
        Act, OCR's recent actions allow schools to discriminate against 
        survivors of sexual harassment and violence, contradicts the 
        longstanding 2001 Guidance, and has already caused confusion 
        for schools and students.
            (11) Therefore Congress has decided to reiterate and codify 
        portions of the 2001 Guidance, the 2011 DCL, and the 2014 Q&A 
        to provide clarity for schools and students regarding what is 
        required under title IX with regard to sexual harassment, 
        including sexual violence.

SEC. 3. DEFINITIONS.

    For purposes of this Act:
            (1) The term ``2001 Guidance'' means the ``Revised Sexual 
        Harassment Guidance: Harassment of Students by School 
        Employees, Other Students, or Third Parties'', issued January 
        19, 2001, by the Office for Civil Rights of the Department of 
        Education, as in effect on January 1, 2017.
            (2) The term ``2011 DCL'' means the Dear Colleague letter 
        issued April 4, 2011, by the Office for Civil Rights of the 
        Department of Education, as in effect on January 1, 2017.
            (3) The term ``2014 Q&A'' means the ``Questions and Answers 
        on Title IX and Sexual Violence'' issued April 29, 2014, by the 
        Office for Civil Rights of the Department of Education, as in 
        effect on January 1, 2017.
            (4) The term ``sexual harassment'' means unwanted conduct 
        of a sexual nature, including sexual violence and gender-based 
        violence, and includes the meaning given to the term ``sexual 
        harassment'' in the 2001 Guidance, which includes unwelcome 
        sexual advances, requests for sexual favors, and other verbal, 
        nonverbal, or physical conduct of a sexual nature.
            (5) The term ``sexual violence'' means rape, sexual 
        assault, sexual battery, and sexual coercion, and refers to the 
        definition in the 2011 DCL.

SEC. 4. CODIFICATION AMENDMENT.

    Section 203 of the Department of Education Organization Act (20 
U.S.C. 3413) is amended by adding at the end the following:
    ``(d) Recipients of Federal financial assistance shall comply with 
the following procedural requirements to respond to sexual harassment, 
including sexual violence, in order to prevent and effectively respond 
to sex discrimination in alignment with title IX of the Education 
Amendments of 1972. Specifically, a recipient shall do all of the 
following:
            ``(1) Disseminate a notice of nondiscrimination on the 
        basis of sex.
            ``(2) Designate at least one employee to coordinate its 
        efforts to comply with and carry out its responsibilities under 
        title IX. The school shall notify all students and employees of 
        the name, office address, telephone number, and email address 
        of all such designated employees.
            ``(3) Adopt and publish grievance procedures providing for 
        prompt and equitable resolution of student and employee sex 
        discrimination complaints. Grievance procedures may include 
        voluntary informal mechanisms (e.g., mediation) for resolving 
        some types of sexual harassment complaints, however, a student 
        who complains of harassment shall not be required to work out 
        the problem directly with the alleged perpetrator via 
        mediation, especially without appropriate involvement by the 
        school (e.g., participation by a trained counselor, a trained 
        mediator, or, if appropriate, a teacher or administrator).
            ``(4) Notify the complainant of the right to end the 
        informal process at any time and begin the formal stage of the 
        complaint process. Mediation and informal resolution are 
        options for resolving some types of sexual harassment 
        complaints, so long as the school completes its investigative 
        requirements if one of these options is employed. Mediation 
        shall not be used to resolve complaints involving allegations 
        of sexual violence.
            ``(5) Require a school to address sexual harassment, 
        including sexual violence, about which a responsible school 
        employee knew or should have known. A responsible employee 
        includes any employee who has the authority to take action to 
        redress sexual harassment, who has been given the duty of 
        reporting incidents of sexual harassment or any other 
        misconduct to the title IX coordinator or other appropriate 
        school designee, or whom a student could reasonably believe has 
        the authority or duty.
            ``(6) Require that if a school knows or reasonably should 
        know about sexual harassment that creates a hostile 
        environment, the school shall take immediate action to 
        eliminate the harassment, prevent its recurrence, and address 
        its effects. Sexual harassment creates a hostile environment if 
        the conduct is sufficiently serious that it interferes with or 
        limits a student's ability to participate in or benefit from 
        the school's program. The more severe the conduct, the less 
        need there is to show a repetitive series of incidents to prove 
        a hostile environment, particularly if the harassment is 
        physical. A single or isolated incident of sexual harassment 
        may create a hostile environment if the incident is 
        sufficiently severe. For instance, a single instance of rape is 
        sufficiently severe to create a hostile environment.
            ``(7) Require a school to process all complaints of sexual 
        violence, regardless of where the conduct occurred, to 
        determine whether the conduct occurred in the context of an 
        education program or activity or had continuing effects on 
        campus or in an off-campus education program or activity. A 
        school's title IX investigation is different from any law 
        enforcement investigation, and a law enforcement investigation 
        does not relieve the school of its independent title IX 
        obligation to investigate the conduct. A school shall take 
        steps to ensure the investigation is impartial. Any real or 
        perceived conflict of interest between the investigator and the 
        parties involved shall be disclosed.
            ``(8) Require a school to use a preponderance of the 
        evidence standard (i.e., it is more likely than not that sexual 
        harassment or violence occurred) in its grievance procedures to 
        be consistent with title IX standards.
            ``(9) Require that throughout the investigation, the 
        parties shall have an equal opportunity to present relevant 
        witnesses and other evidence.
            ``(10) Require that the complainant and respondent be 
        afforded similar and timely access to any information that will 
        be used at the hearing.
            ``(11) Require that if the school allows one party to be 
        present for the entirety of a hearing, it shall do so equally 
        for both parties. When requested, a school shall make 
        arrangements so that the complainant and the alleged 
        perpetrator do not have to be present in the same room at the 
        same time (e.g., using closed-circuit television). If a hearing 
        is part of the school's title IX investigation process, the 
        school shall not require a complainant to be present at the 
        hearing as a prerequisite to proceed with the hearing.
            ``(12) Require that all persons involved in implementing a 
        school's grievance procedures (e.g., title IX coordinators, 
        investigators, and adjudicators) have training or experience in 
        handling complaints of sexual harassment and sexual violence 
        and in the school's grievance procedures.
            ``(13) Require that if an appeal of findings or remedy is 
        provided by a school, it shall be provided to both parties.
            ``(14) Require schools to maintain documentation of all 
        proceedings, which may include written findings of facts, 
        transcripts, or audio recordings.
            ``(15) Not require schools to permit parties to have 
        lawyers at any stage of the grievance proceedings, but if a 
        school chooses to allow the parties to have their lawyers 
        participate in the proceedings, it shall do so equally for both 
        parties. Any school-imposed restrictions on the ability of 
        lawyers to speak or otherwise participate in the proceedings 
        shall apply equally to both parties.
            ``(16) Require schools not to allow the parties to 
        personally question or cross-examine each other during the 
        hearing as allowing an alleged perpetrator to question an 
        alleged victim directly may be traumatic or intimidating, 
        thereby possibly escalating or perpetuating a hostile 
        environment. A school may choose, instead, to allow the parties 
        to submit questions to a trained third party (e.g., the hearing 
        panel) to ask the questions it deems appropriate and relevant 
        on their behalf, except that questioning about the 
        complainant's sexual history, with anyone other than the 
        respondent, shall not be permitted. A school should recognize 
        that the mere fact of a current or previous consensual dating 
        or sexual relationship between the two parties does not itself 
        imply consent or preclude a finding of sexual violence.
            ``(17) Advise that a school may provide advisors for both 
        the complainant and the respondent. If a school provides an 
        advisor, it shall do so for both parties, with the same 
        information available to both advisors.
            ``(18) Require schools to inform and obtain consent from 
        the complainant (or the complainant's parents if the 
        complainant is under 18 and does not attend a postsecondary 
        institution) before beginning an investigation.
            ``(19) Require that if the complainant requests 
        confidentiality, or asks that the complaint not be pursued, the 
        school shall take all reasonable steps to investigate and 
        respond to the complaint consistent with the request for 
        confidentiality or request not to pursue an investigation. If a 
        complainant insists that the complainant's name or other 
        identifiable information not be disclosed to the alleged 
        perpetrator, the school shall inform the complainant that its 
        ability to respond may be limited. Even if the school cannot 
        take disciplinary action against the alleged harasser because 
        the complainant insists on confidentiality, it shall pursue 
        other steps to limit the effects of the alleged harassment and 
        prevent its recurrence. Schools shall refer to the 2001 
        Guidance for additional information on confidentiality and the 
        alleged perpetrator's due process rights. If the complainant 
        continues to ask that the complainant's name or other 
        identifiable information not be revealed, the school shall 
        evaluate that request in the context of its responsibility to 
        provide a safe and nondiscriminatory environment for all 
        students. Specifically, the school may weigh the request for 
        confidentiality against all of the following factors:
                    ``(A) The seriousness of the alleged harassment.
                    ``(B) The complainant's age.
                    ``(C) Whether there have been other harassment 
                complaints about the same individual.
                    ``(D) The alleged harasser's rights to receive 
                information about the allegations if the information is 
                maintained by the school as an education record under 
                the Family Educational Rights and Privacy Act (FERPA) 
                (20 U.S.C. 1232g).
            ``(20) Require that if the alleged harasser may have a 
        right under FERPA to inspect and review portions of the 
        complaint that directly relate to the complainant, the school 
        shall redact the complainant's name and other identifying 
        information before allowing the alleged harasser to inspect and 
        review the sections of the complaint that relate to the 
        complainant. In some cases, such as those where the school is 
        required to report the incident to local law enforcement or 
        other officials, the school may not be able to maintain the 
        complainant's confidentiality.
            ``(21) Require that the school shall inform the complainant 
        if it cannot ensure confidentiality prior to disclosing the 
        complainant's identity.
            ``(22) Require that grievance procedures specify the 
        timeframe within which--
                    ``(A) the school will conduct a full investigation 
                of the complaint;
                    ``(B) both parties receive a response regarding the 
                outcome of the complaint; and
                    ``(C) both parties may file an appeal, if 
                applicable.
            ``(23) Advise that an investigation should conclude 
        approximately in the 60-calendar-day timeframe for 
        investigations following receipt of the complaint, depending on 
        the complexity of the investigation and the severity and extent 
        of the harassment, except in cases--
                    ``(A) involving multiple incidents with multiple 
                complainants; or
                    ``(B) where there is a parallel criminal 
                investigation.
        Although a school may need to delay temporarily the fact-
        finding portion of a title IX investigation while the police 
        are gathering evidence, it shall promptly resume and complete 
        its fact-finding for the title IX investigation once it learns 
        that the police department has completed its evidence-gathering 
        stage of the criminal investigation. The school should not 
        delay its investigation until the ultimate outcome of the 
        criminal investigation or the filing of any charges. Where a 
        school may need to stop an investigation during school breaks 
        or between school years, a school shall make every effort to 
        try to conduct an investigation during these breaks unless so 
        doing would sacrifice witness availability or otherwise 
        compromise the process.
            ``(24) Both parties shall be given periodic status updates 
        during throughout the grievance process.
            ``(25) Require that schools notify both parties, in 
        writing, about the outcome of both the complaint and any 
        appeal. A school shall provide written notice of the outcome to 
        the complainant and the respondent concurrently. A school shall 
        inform the complainant as to whether or not it found that the 
        alleged conduct occurred, any individual remedies offered or 
        provided to the complainant, or any sanctions imposed on the 
        perpetrator that directly relate to the complainant, and other 
        steps the school has taken to eliminate the hostile 
        environment, if the school finds one to exist, and prevent 
        recurrence. Sanctions that directly relate to the complainant 
        include, but are not limited to, requiring that the perpetrator 
        stay away from the complainant until both parties graduate, 
        prohibiting the perpetrator from attending school for a period 
        of time, or transferring the perpetrator to another residence 
        hall, other classes, or another school. The perpetrator shall 
        not be notified of the individual remedies offered or provided 
        to the complainant.
            ``(26) In addition, the Clery Act requires, and FERPA 
        permits, postsecondary institutions to inform the complainant 
        of the institution's final determination and any disciplinary 
        sanctions imposed on the perpetrator in sexual violence cases, 
        not just those sanctions that directly relate to the 
        complainant.
            ``(27) Require that if a school determines that sexual 
        harassment that creates a hostile environment has occurred, it 
        shall take immediate action to eliminate the hostile 
        environment, prevent its recurrence, and address its effects. 
        When a school knows or reasonably should know of possible 
        retaliation by other students or third parties, it shall take 
        immediate and appropriate steps to investigate or otherwise 
        determine what occurred. A school shall also take steps to 
        protect the complainant as necessary, including taking interim 
        steps before the final outcome of the investigation. The school 
        shall undertake these steps promptly once it has notice of a 
        sexual harassment or violence allegation. The school shall 
        notify the complainant of the complainant's options to avoid 
        contact with the alleged perpetrator and allow students to 
        change academic or living situations as appropriate.
            ``(28) When taking steps to separate the complainant and 
        alleged perpetrator, a school shall minimize the burden on the 
        complainant, and thus shall not, as a matter of course, remove 
        complainants from classes or housing while allowing alleged 
        perpetrators to remain.
            ``(29) In addition, schools shall ensure that complainants 
        are aware of their title IX rights and any available resources, 
        such as counseling, health, and mental health services, and 
        their right to file a complaint with local law enforcement.
            ``(30) If a school determines that it needs to offer 
        counseling to the complainant as part of its title IX 
        obligation to take steps to protect the complainant while the 
        investigation is ongoing, it shall not require the complainant 
        to pay for this service.
    ``(e) For purposes of this section:
            ``(1) The term `2001 Guidance' means the `Revised Sexual 
        Harassment Guidance: Harassment of Students by School 
        Employees, Other Students, or Third Parties', issued January 
        19, 2001, by the Office for Civil Rights of the Department of 
        Education, as in effect on January 1, 2017.
            ``(2) The term `2011 DCL' means the Dear Colleague letter 
        issued April 4, 2011, by the Office for Civil Rights of the 
        Department of Education, as in effect on January 1, 2017.
            ``(3) The term `2014 Q&A' means the `Questions and Answers 
        on Title IX and Sexual Violence' issued April 29, 2014, by the 
        Office for Civil Rights of the Department of Education, as in 
        effect on January 1, 2017.
            ``(4) The term `sexual harassment' means unwanted conduct 
        of a sexual nature, including sexual violence and gender-based 
        violence, and includes the meaning given to the term `sexual 
        harassment' in the 2001 Guidance, which includes unwelcome 
        sexual advances, requests for sexual favors, and other verbal, 
        nonverbal, or physical conduct of a sexual nature.
            ``(5) The term `sexual violence' means rape, sexual 
        assault, sexual battery, and sexual coercion, and refers to the 
        definition in the 2011 DCL.
            ``(6) The term `60-calendar-day timeframe for 
        investigations' has the meaning given such term in the 2014 Q&A 
        and includes the entire investigation process, which includes 
        conducting the fact-finding investigation, holding a hearing or 
        engaging in another decisionmaking process to determine whether 
        the alleged sexual violence occurred and created a hostile 
        environment, and determining what actions the school will take 
        to eliminate the hostile environment and prevent its 
        recurrence, including imposing sanctions against the 
        perpetrator and providing remedies for the complainant and 
        school community, as appropriate. Such term does not include 
        appeals, but an unduly long appeals process may impact whether 
        the school's response was prompt and equitable as required by 
        title IX.
            ``(7) The term `advisor' has the meaning given such term in 
        section 304(5)(iv)(II) of the Violence Against Women 
        Reauthorization Act of 2013 (Public Law 113-4).''.
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