[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  

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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.
---------------------------------------------------------------------------

    \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\
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    \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.
---------------------------------------------------------------------------

    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--
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
                                 -----------------------------------------------------------------------------------------------------------------------
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]

0
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.
0
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;
* * * * *
0
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