[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1017 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 1017

  To amend title IX of the Education Amendments of 1972 to ensure due 
                   process in grievance proceedings.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 28, 2023

  Mr. Kennedy introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To amend title IX of the Education Amendments of 1972 to ensure due 
                   process in grievance proceedings.

    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 ``Ensuring Fairness for Students 
Act''.

SEC. 2. ENSURING DUE PROCESS IN TITLE IX CLAIMS.

    Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is 
amended by adding at the end the following:
    ``(d) Ensuring Due Process.--
            ``(1) Sexual harassment.--In this section, the term `sexual 
        harassment' has the meaning given the term in section 106.30 of 
        title 34, Code of Federal Regulations, or any successor 
        regulation.
            ``(2) Implementation requirement.--Not later than 12 months 
        after the date of enactment of the Ensuring Fairness for 
        Students Act, each educational institution to which this 
        section applies shall implement a grievance process to 
        investigate and adjudicate formal complaints of sexual 
        harassment that incorporates due process principles, treats all 
        parties fairly, and reaches reliable responsibility 
        determinations.
            ``(3) Grievance process.--Each grievance process 
        implemented under paragraph (2) shall comply with each of the 
        following:
                    ``(A) Give both parties--
                            ``(i) written notice of the allegation;
                            ``(ii) an equal opportunity to select an 
                        advisor of the party's choice (who may be, but 
                        does not need to be, an attorney); and
                            ``(iii) an equal opportunity to submit and 
                        review evidence throughout the investigation of 
                        the allegation.
                    ``(B) Use personnel who are trained in compliance 
                with requirements under this title to objectively 
                evaluate all relevant evidence without prejudgment of 
                the facts at issue and free from conflicts of interest 
                or bias for or against either party.
                    ``(C) Protect both parties' privacy by requiring a 
                party's written consent before using the party's 
                medical, psychological, or similar treatment records 
                during the grievance process.
                    ``(D) Obtain both parties' voluntary, written 
                consent before using any kind of informal resolution 
                process, such as mediation or restorative justice.
                    ``(E) Not use an informal resolution process, as 
                described in subparagraph (D), in cases where an 
                employee of the educational institution is alleged to 
                have sexually harassed a student.
                    ``(F) Apply a presumption that the respondent is 
                not responsible during the grievance process, so that 
                the educational institution bears the burden of proof 
                and the standard of evidence is applied correctly.
                    ``(G) Ensure the decision-maker is not the same 
                person as the investigator or the Title IX Coordinator 
                (who is the individual designated as a responsible 
                employee in section 106.8(a) of title 34, Code of 
                Federal Regulations, as such section is in effect on 
                the date of enactment of the Ensuring Fairness for 
                Students Act).
                    ``(H) For educational institutions that are--
                            ``(i) postsecondary institutions, hold a 
                        live hearing and--
                                    ``(I) allow cross-examination by 
                                the advisors of the parties; and
                                    ``(II) not permit cross-examination 
                                by the parties personally; and
                            ``(ii) elementary schools or secondary 
                        schools, provide an opportunity for each party 
                        to submit written questions for the other party 
                        and any witness to answer.
                    ``(I) Offer both parties an equal opportunity to 
                appeal.
                    ``(J) Protect any individual, including 
                complainants, respondents, and witnesses, from 
                retaliation for reporting sexual harassment or 
                participating (or refusing to participate) in the 
                grievance process.
                    ``(K) Document and keep records of all sexual 
                harassment reports and investigations.''.
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