[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33474-33896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07915]
[[Page 33473]]
Vol. 89
Monday,
No. 83
April 29, 2024
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; Final Rule
Federal Register / Vol. 89 , No. 83 / Monday, April 29, 2024 / Rules
and Regulations
[[Page 33474]]
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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: Final rule.
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SUMMARY: The U.S. Department of Education (Department) amends the
regulations implementing Title IX of the Education Amendments of 1972
(Title IX). The purpose of these amendments is to better align the
Title IX regulatory requirements with Title IX's nondiscrimination
mandate. These amendments clarify the scope and application of Title IX
and the obligations of recipients of Federal financial assistance from
the Department, including elementary schools, secondary schools,
postsecondary institutions, and other recipients (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. These final regulations
will enable all recipients to meet their obligations to comply with
Title IX while providing them with appropriate discretion and
flexibility to account for variations in school size, student
populations, and administrative structures.
DATES: These final regulations are effective August 1, 2024.
FOR FURTHER INFORMATION CONTACT:
Randolph Wills, U.S. Department of Education, 400 Maryland Avenue
SW, Fifth Floor, Washington, DC 20202. Telephone: (917) 284-1982.
Email: [email protected]. 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:
Table of Contents
Table of Contents
Effective Date
Executive Summary
Purpose of This Regulatory Action
Summary of the Major Provisions of This Regulatory Action
Timing, Comments, and Changes
I. Provisions of General Applicability
A. Personal Stories
1. Experiences Relating to Title IX Grievance Procedures
2. Experiences Relating to Pregnancy
3. Experiences Relating to Sexual Orientation and Gender
Identity
B. Purpose
1. Section 106.1 Purpose
C. Definitions
1. Section 106.2 Definition of ``Administrative Law Judge''
2. Section 106.2 Definition of ``Complainant''
3. Section 106.2 Definition of ``Complaint''
4. Section 106.2 Definition of ``Disciplinary Sanctions''
5. Section 106.2 Definitions of ``Elementary School'' and
``Secondary School''
6. Section 106.2 Definition of ``Postsecondary Institution''
7. Section 106.2 Definition of Prohibited ``Sex-Based
Harassment''
8. Section 106.2 Definition of ``Relevant''
9. Section 106.2 Definition of ``Remedies''
10. Section 106.2 Definition of ``Respondent''
11. Section 106.2 Definition of ``Student With a Disability''
12. Section 106.2 Definition of ``Title IX''
D. Other Definitions (definitions that the Department did not
propose to amend)
1. Section 106.2 Definition of ``Employee''
2. Section 106.2 Definition of ``Federal Financial Assistance''
3. Section 106.2 Definition of ``Program or Activity''
4. Section 106.2 Definition of ``Recipient''
5. Section 106.2 Definition of ``Student''
6. Adding a definition of ``Party''
7. Adding a definition of ``Sex Discrimination''
E. Application
1. Section 106.11 Application
F. The Effect of Other Requirements and Preservation of Rights
1. Section 106.6(e) Effect of Section 444 of General Education
Provisions Act (GEPA)/Family Educational Rights and Privacy Act
(FERPA) and Directed Question 1
2. Section 106.6(g) Exercise of Rights by Parents, Guardians, or
Other Authorized Legal Representatives
3. Section 106.6(b) Preemptive Effect
II. Recipient's Obligation to Operate Its Education Program or
Activity Free From Sex Discrimination
A. Administrative Requirements
1. Section 106.8(a) Designation of a Title IX Coordinator
2. Section 106.8(b) and (c) Nondiscrimination Policy, Grievance
Procedures, and Notice of Nondiscrimination
3. Section 106.8(d) Training
4. Section 106.8(e) Students with Disabilities
5. Section 106.8(f) Recordkeeping
B. Action by a Recipient to Operate Its Education Program or
Activity Free From Sex Discrimination
1. Section 106.44(a) General
2. Section 106.44(b) Monitoring for Barriers
3. Section 106.44(c) Notification Requirements
4. Sections 106.2 and 106.44(d) ``Confidential employee''
requirements and definition
5. Section 106.44(e) Public Awareness Events
6. Section 106.44(f) Title IX Coordinator Requirements
7. Sections 106.44(g) and 106.2 Supportive Measures and
Definition of ``Supportive Measures''
8. Section 106.44(h) Emergency Removal
9. Section 106.44(i) Administrative Leave
10. Section 106.44(j) Prohibited Disclosures of Personally
Identifiable Information
11. Section 106.44(k) Informal Resolution Process
C. Framework for Grievance Procedures for Complaints of Sex
Discrimination
1. General Support
2. Due Process Generally
3. Administrative Burdens
4. Bifurcation of Sex-Based Harassment Complaints Between
Students and Employees at a Postsecondary Institution
5. Ability to Respond to Threats, Promptly Impose Discipline, or
Address Sex Discrimination
6. Grievance Procedures Appearing as Quasi-Judicial Proceedings
7. Consistency with Other Civil Rights Laws that OCR Enforces
8. Elementary Schools and Secondary Schools
9. Employees
10. Section 106.45 Grievance Procedures for the Prompt and
Equitable Resolution of Complaints of Sex Discrimination
11. 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
D. Grievance Procedures for the Prompt and Equitable Resolution
of Complaints of Sex Discrimination (Section 106.45)
1. Section 106.45(a)(1) and Section 106.46(a)
2. Section 106.45(a)(2) Who Can Make Complaint
3. Section 106.45(b)(1) Treat Complainants and Respondents
Equitably
4. Section 106.45(b)(2) Conflicts of Interest or Bias
5. Section 106.45(b)(3) Presumption That the Respondent Is Not
Responsible for the Alleged Sex Discrimination Until a Determination
Is Made at the Conclusion of the Grievance Procedures
6. Sections 106.45(b)(4) and 106.46(e)(5) Timeframes
7. Section 106.45(b)(5) Reasonable Limitations on Sharing of
Information
8. Section 106.45(b)(6) Objective Evaluation of All Relevant
Evidence and 106.45(b)(7) Exclusion of Impermissible Evidence
9. Section 106.45(b)(8) Procedures that Apply to Some, but Not
All, Complaints
10. Section 106.45(c) Notice of Allegations
11. Section 106.45(d) Dismissal of a Complaint
12. Section 106.45(e) Consolidation of Complaints
13. Section 106.45(f) Complaint Investigations
14. Section 106.45(f)(1) Investigative Burden on Recipients
15. Section 106.45(f)(2) Opportunity To Present Witnesses and
Other Evidence
[[Page 33475]]
that Are Relevant and Not Otherwise Impermissible
16. Section 106.45(f)(3) Review and Determination of Relevant
Evidence
17. Section 106.45(f)(4) Access to the Relevant and Not
Otherwise Impermissible Evidence
18. Section 106.45(g) Evaluating Allegations and Assessing
Credibility
19. Section 106.45(h)(1) Standard of Proof and Directed Question
4
20. Section 106.45(h)(2) Notification of Determination Whether
Sex Discrimination Occurred
21. Section 106.45(h)(3) Remedies to a Complainant and Other
Appropriate Prompt and Effective Steps
22. Section 106.45(h)(4) Comply With This Section Before
Imposition of Disciplinary Sanctions
23. Section 106.45(h)(5) Prohibition on Discipline Based Solely
on Determination
24. Section 106.45(i) Appeals
25. Section 106.45(j) Additional Provisions
26. Section 106.45(l) Range of Supportive Measures and
Disciplinary Sanctions and Remedies
E. Grievance Procedures for the Prompt and Equitable Resolution
of Complaints of Sex-Based Harassment Involving a Student
Complainant or Student Respondent at Postsecondary Institutions
1. Section 106.46(b) Student-Employees
2. Section 106.46(c) Written Notice of Allegations
3. Section 106.46(d) Dismissal of a Complaint
4. Section 106.46(e)(1) Notice in Advance of Meetings
5. Section 106.46(e)(2) Role of Advisor
6. Section 106.46(e)(3) Other Persons Present at Proceedings
7. Section 106.46(e)(4) Expert Witnesses
8. Section 106.46(e)(5) Timeframes
9. Section 106.46(e)(6) Access to Relevant and Not Otherwise
Impermissible Evidence
10. Section 106.46(f) Evaluating Allegations and Assessing
Credibility
11. Section 106.46(g) Live Hearings
12. Section 106.46(h) Determination Whether Sex-Based Harassment
Occurred
13. Section 106.46(i) Appeals
14. Section 106.46(j) Informal Resolution
F. Assistant Secretary Review
1. Section 106.47 Assistant Secretary Review
III. Pregnancy and Parental Status
A. Revised Definitions
1. Section 106.2 Definition of ``Pregnancy or Related
Conditions''
2. Section 106.2 Definition of ``Parental Status''
B. Admissions
1. Section 106.21(c) Parental, Family, or Marital Status;
Pregnancy or Related Conditions
C. Discrimination Based on a Student's Parental, Family, or
Marital Status, or Pregnancy or Related Conditions
1. Section 106.40 Parental, Family, or Marital Status; Pregnancy
or Related Conditions; and Section 106.40(a) Status Generally
2. Section 106.40(b)(1) Pregnancy or Related Conditions--
Nondiscrimination
3. Section 106.40(b)(2) Pregnancy or Related Conditions--
Responsibility to Provide Title IX Coordinator Contact and Other
Information
4. Section 106.40(b)(3) Pregnancy or Related Conditions--
Specific Actions To Prevent Discrimination and Ensure Equal Access
5. Section 106.40(b)(3)(i) Pregnancy or Related Conditions--
Responsibility to Provide Information About Recipient Obligations
6. Section 106.40(b)(3)(ii) Pregnancy or Related Conditions--
Reasonable Modifications
7. Sections 106.40(b)(1) and 106.40(b)(3)(iii) Pregnancy or
Related Conditions--Voluntary Access to Separate and Comparable
Portion of Program or Activity
8. Section 106.40(b)(3)(iv) Pregnancy or Related Conditions--
Voluntary Leaves of Absence
9. Section 106.40(b)(3)(v) Pregnancy or Related Conditions--
Lactation Space
10. Section 106.40(b)(3)(vi) Pregnancy or Related Conditions--
Limitation on Supporting Documentation
11. Section 106.40(b)(4) Pregnancy or Related Conditions--
Comparable Treatment to Other Temporary Medical Conditions
12. Section 106.40(b)(5) Pregnancy or Related Conditions--
Certification To Participate
D. Discrimination Based on an Employee's Parental, Family,
Marital Status, Pregnancy, or Related Conditions
1. Section 106.51(b)(6) Employment--Granting and Return from
Leaves
2. Section 106.57 Parental, Family, or Marital Status; Pregnancy
or Related Conditions
3. Section 106.57(a) Parental, Family, or Marital Status
4. Section 106.57(b) Pregnancy or Related Conditions
5. Section 106.57(c) Comparable Treatment to Other Temporary
Medical Conditions
6. Section 106.57(d) Voluntary Leaves of Absence
7. Section 106.57(e) Lactation Time and Space
8. Section 106.60 Pre-Employment Inquiries
IV. Title IX's Coverage of Sex Discrimination
A. Section 106.10 Scope
1. General
2. Authority to Enact Regulations on Sexual Orientation and
Gender Identity Discrimination
3. Reliance on Bostock and Title VII Case Law
4. Sexual Orientation and Gender Identity Discrimination
Generally
5. Gender Identity
6. Sexual Orientation
7. Sex Characteristics
8. Sex Stereotypes
9. Pregnancy or Related Conditions
10. Menstruation or Related Conditions
B. Section 106.31(a) Education Programs or Activities--General
1. De Minimis Harm Standard
2. Application
3. Participation Consistent with Gender Identity
4. Parental Rights
5. Intersection with Health Care
6. Intersection with Individuals' Religious Beliefs
7. Appearance Codes
8. Juvenile Justice Facilities
9. Burden on Schools
V. Retaliation
A. Section 106.71 Retaliation
1. General Support and Opposition
2. Intersection with Sec. 106.45(h)(5)
3. Examples of Prohibited Retaliation
4. First Amendment
5. Requests to Clarify or Modify
6. Other Clarifications to Regulatory Text
B. Section 106.2 Definition of ``Retaliation''
1. Protected Activity
2. Adverse Action
3. Causal Connection
4. Other Clarifications to Regulatory Text
C. Section 106.2 Definition of ``Peer Retaliation''
VI. Outdated Regulatory Provisions
A. Section 106.3(c) and (d) Self-Evaluation
B. Sections 106.2(s), 106.16, and 106.17 Transition Plans
C. Section 106.41(d) Adjustment Period
VII. Miscellaneous
A. General Support and Opposition
B. Parental Rights--Generally
C. Religious Exemptions
1. General Support and Opposition
2. Section 106.12(c)
3. Section 106.12(b)
4. Transparency
5. Religious Individuals
6. 34 CFR 75.500(d) and 76.500(d)
D. Rulemaking Process
E. Length of Public Comment Period and Process for Submitting
and Posting Comments
F. Effective Date and Retroactivity
G. Prevention
H. Tenth Amendment
I. Exceeding Authority
J. Views of Assistant Secretary Lhamon
K. Regulatory Action Not Necessary
L. Need for Long-Lasting, Flexible Regulations
M. Intersection with Other Laws
N. Family Policymaking Assessment
O. National Origin and Immigration Status
P. Coverage of Employment
Q. Funding for Compliance
R. Technical Assistance
S. Coordination
T. Terminology
U. Discipline of Student Organizations
V. Contractors
W. Data Collection and Climate Surveys
X. OCR Enforcement Practices
Y. Severability
Z. Addressing Other Issues
AA. Comments Outside the Scope of Title IX
Regulatory Impact Analysis (RIA)
A. Comments on the Department's Model and Baseline Assumptions
1. Regulatory Flexibility Act (Small Business Impacts)
2. Taxpayer Costs
3. Cost Estimate
4. Definition of Sex-Based Harassment (Sec. 106.2)
[[Page 33476]]
5. Nondiscrimination Policy and Grievance Procedures (Sec.
106.8)
6. Training Requirements (Sec. 106.8(d))
7. Recordkeeping (Sec. 106.8(f))
8. Application of Title IX (Sec. 106.11)
9. Duty to Address Sex Discrimination (Sec. 106.44)
10. Title IX Coordinator Obligations: Duty to Monitor (Sec.
106.44(b) and (f))
11. Notification Requirements (Sec. 106.44(c))
12. Provision of Supportive Measures (Sec. 106.44(f)-(g))
13. Impartial Review of Supportive Measures (Sec. 106.44(g)(4))
14. Grievance Procedures (Sec. Sec. 106.45 and 106.46)
15. Regulatory Stability and Reliance Interests
16. Training for Decisionmakers (Sec. 106.46(f)(4))
17. Single-Investigator Model (Sec. 106.45(b)(2))
18. Pregnancy or Related Conditions (Sec. Sec. 106.40 and
106.57(e))
19. Scope of Sex Discrimination (Sec. 106.10)
20. Menstruation or Related Conditions
21. Other
B. Regulatory Impact Analysis (RIA)
1. Need for Regulatory Action
2. Discussion of Costs, Benefits, and Transfers
3. Benefits of the Final Regulations
4. Costs of the Final Regulations
5. Regulatory Alternatives Considered
6. Accounting Statement
C. Regulatory Flexibility Act (Small Business Impacts)
1. Introduction
2. Final Regulatory Flexibility Analysis
Executive Order 12250 On Leadership And Coordination of
Nondiscrimination Laws
Paperwork Reduction Act of 1995
Assessment of Educational Impact
Federalism
Accessible Format
Electronic Access to This Document
Effective Date
As detailed more extensively below, the Department recognizes the
practical necessity of allowing recipients of Federal financial
assistance time to plan for implementing these final regulations.
Taking into account the need for the time to plan, as well as
consideration of public comments about an effective date as explained
in the discussion of Effective Date and Retroactivity (Section VII.F),
the Department has determined that these final regulations are
effective August 1, 2024.
Executive Summary
1. Purpose of This Regulatory Action
Enacted in 1972, Title IX states that ``No 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,''
absent certain exceptions. 20 U.S.C. 1681.\1\ The U.S. Department of
Education (the ``Department'' or ``we'') has authority to issue rules
effectuating this prohibition on sex discrimination consistent with the
objectives of the statute. 20 U.S.C. 1682. The history of the Title IX
regulations is described in the preamble to the 2020 amendments to the
Title IX regulations. 85 FR 30026, 30028 (May 19, 2020) (hereinafter
``the 2020 amendments''); see also 87 FR 41390, 41393-95 (July 12,
2022). The 2020 amendments specify how a recipient \2\ must respond to
sexual harassment, and the preamble to the 2020 amendments acknowledged
that the regulations issued under the 2020 amendments represented a
partial change from the way the Department had enforced Title IX with
respect to recipients' duties to respond to sexual harassment prior to
the 2020 amendments. 85 FR 30068.
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\1\ The definition of the term ``Federal financial assistance''
under the Department's 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).
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.
\2\ Throughout this preamble, ``recipient'' is used to refer to
a recipient of Federal financial assistance from the Department.
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Based on an extensive review of the 2020 amendments, information
including stakeholder feedback received prior to the issuance of the
notice of proposed rulemaking (the ``July 2022 NPRM,'' 87 FR 41390
(July 12, 2022)), and consideration of public comments on the July 2022
NPRM, the Department has determined that amendments are required to
fully effectuate Title IX's sex discrimination prohibition. Even if
these amendments are not strictly required to effectuate the
prohibition, the Department has, in the exercise of its discretion,
determined that they further Title IX's prohibition on sex
discrimination. The Department therefore issues these final regulations
to provide greater clarity regarding: the definition of ``sex-based
harassment''; 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; and recipients' obligations to provide an
educational environment free from discrimination on the basis of sex.
Additionally, these regulations aim to fulfill Title IX's protection
for students, teachers, and other employees in federally funded
elementary schools and secondary schools and postsecondary institutions
against all forms of sex discrimination, including sex-based harassment
and sexual violence. The final regulations will help to ensure that all
students receive appropriate support when they experience sex
discrimination and that recipients' procedures for investigating and
resolving complaints of sex discrimination are fair to all involved.
These final regulations also better account for the variety of
recipients and education programs or activities covered by Title IX and
provide discretion and flexibility for recipients to account for
variations in school size, student populations, and administrative
structures.
These regulations:
Require recipients to adopt grievance procedures that
provide for fair, prompt, and equitable resolution of complaints of sex
discrimination and to take other necessary steps to provide an
educational environment free from sex discrimination;
Clarify that Title IX's prohibition on sex discrimination
includes sex-based harassment in the form of quid pro quo harassment,
hostile environment harassment, and four specific offenses (sexual
assault, dating violence, domestic violence, and stalking); and
Clarify that sex discrimination includes discrimination on
the basis of sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity.
2. Summary of the Major Provisions of This Regulatory Action
With regard to sex-based harassment, the final regulations:
Define ``sex-based harassment'' as a form of sex
discrimination that includes sexual harassment and harassment based on
sex stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, or gender identity, that is quid pro quo
harassment, hostile environment harassment, or one of four specific
offenses referenced in the Jeanne Clery Disclosure of Campus Security
Policy and Campus Crimes Statistics Act (``Clery Act'') as amended by
the Violence Against Women Reauthorization Act of 2013;
Provide and clarify definitions of various terms related
to a recipient's obligations to address sex discrimination, including
sex-based harassment;
Clarify a recipient's required response to sex
discrimination, including sex-based harassment, in its education
program or activity;
[[Page 33477]]
Strengthen a recipient's obligations to provide prompt and
equitable grievance procedures and to take other necessary steps when
it receives a complaint of sex discrimination, including sex-based
harassment; and
Provide for additional requirements in grievance
procedures at postsecondary institutions for complaints of sex-based
harassment involving a student complainant (a student who is alleged to
have been subjected to conduct that could constitute sex
discrimination) or student respondent (a student who is alleged to have
violated the recipient's prohibition on sex discrimination).
With regard to discrimination against individuals who are pregnant
or parenting, the final regulations:
Define the terms ``pregnancy or related conditions'' and
``parental status'';
Clarify the prohibition on discrimination against students
and applicants for admission and employees or applicants for 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 pregnancy-related
conditions.
In addition, the final regulations:
Clarify and streamline administrative requirements with
respect to designating a Title IX Coordinator, disseminating a
nondiscrimination notice, adopting grievance procedures, and
maintaining records;
Specify that a recipient must train a range of relevant
persons on the recipient's obligations under Title IX;
Clarify that, except as permitted by certain provisions of
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.
Timing, Comments, and Changes
On July 12, 2022, the Department published the July 2022 NPRM in
the Federal Register to amend regulations implementing Title IX. 87 FR
41390.
The Department invited the public to comment on all aspects of the
proposed regulations, as well as the Regulatory Impact Analysis. The
July 2022 NPRM also included several directed questions. 87 FR 41544.
Comments in response to directed questions are addressed in this
preamble in connection with the relevant regulatory section.
In response to our invitation in the July 2022 NPRM, we received
more than 240,000 comments on the proposed regulations. The final
regulations contain changes from the July 2022 NPRM, and these changes
are fully explained throughout the discussion in this preamble. We
discuss substantive issues raised in the comments under topical
headings, and by the sections of the final regulations to which they
pertain, including an analysis of the public comments and changes in
the final regulations since the publication of the July 2022 NPRM.
Generally, we do not address technical and other minor changes (such as
renumbering paragraphs, adding a word, or typographical errors).
Throughout this preamble, the Department refers to Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681, 1682, 1683, 1685, 1686,
1687, 1688, 1689, as amended, as ``Title IX,'' to the Individuals with
Disabilities Education Act, 20 U.S.C. 1400 et seq., as the ``IDEA,'' to
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.,
as ``Section 504,'' to the Americans with Disabilities Act, 42 U.S.C.
12101 et seq., as the ``ADA,'' to Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d et seq., as ``Title VI,'' to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as ``Title VII,'' to
section 444 of the General Education Provisions Act (GEPA), 20 U.S.C.
1232g, which is commonly referred to as the Family Educational Rights
and Privacy Act of 1974, as ``FERPA,'' to the Health Insurance
Portability and Accountability Act of 1996, 42 U.S.C. 1320d et seq., as
``HIPAA,'' to the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act, 20 U.S.C. 1092(f), as the ``Clery Act,''
to the Violence Against Women Reauthorization Act of 2013, Public Law
113-4 (codified as amended throughout the U.S. code), as ``VAWA 2013,''
and to the Violence Against Women Act Reauthorization Act of 2022,
Public Law 117-103 (codified as amended throughout the U.S. Code), as
``VAWA 2022.'' In 2013, the Clery Act was amended by VAWA 2013. See
Public Law 113-4. In 2014, the Department amended the Clery Act
regulations at 34 CFR 668.46 to implement the statutory changes to the
Clery Act made by VAWA 2013. See 79 FR 62752 (Oct. 20, 2014). The
regulations took effect on July 1, 2015. Throughout this preamble,
references to the Clery Act mean the Clery Act as amended by VAWA 2013.
These final regulations interpret the Title IX statute consistent
with the Department's authority under 20 U.S.C. 1682. Throughout the
preamble, we refer to ``this part,'' meaning 34 CFR part 106. These
regulations' prohibitions on sex discrimination are coextensive with
the statute, and any use of ``and this part'' or ``or this part''
should be construed consistent with the fact that the final regulations
interpret the statute. The Department has revised the regulatory text
to clarify, as appropriate.
Throughout the preamble, the Department references statistics,
data, research, and studies that commenters provided in response to the
July 2022 NPRM. The Department's reference to these items, however,
does not necessarily speak to their accuracy. The preamble also breaks
up its discussion in several places as ``Comments,'' ``Discussion,''
and ``Changes.'' This structure is for readability, and the omission of
a reference to a comment in the ``Comments'' section does not mean that
a significant, relevant comment is not addressed in the ``Discussion''
section.
The final regulations define and apply the terms ``party,''
``complainant,'' and ``respondent.'' In this preamble, ``complainant''
generally means a person who is alleged to have been subjected to
conduct that could constitute sex discrimination, ``respondent'' means
a person who is alleged to have violated the recipient's prohibition on
sex discrimination, and ``party'' means a complainant or a respondent.
See Sec. 106.2. References in this preamble to a party, complainant,
respondent, or other individual with respect to exercise of rights
under Title IX should be understood to include situations in which a
parent, guardian, or other authorized legal representative exercises a
legal right to act on behalf of the individual. See Sec. 106.6(g).
Many commenters referenced the impact of sex discrimination or the
proposed regulations on individuals who belong to, or identify with,
certain demographic groups, and used a variety of acronyms and phrases
to describe such individuals. For consistency, throughout this preamble
we generally use the term ``LGBTQI+'' to refer to people 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 Department of Education, Office for
Civil Rights (OCR) guidance documents,
[[Page 33478]]
this preamble also uses variations of the LGBTQI+ acronym to track the
content of those documents, as appropriate.
In response to commenters who asked for clarification as to whether
the definitions in Sec. 106.2 apply to a term in a specific regulatory
provision, some of the regulatory provisions specifically refer to a
term ``as defined in Sec. 106.2'' to provide additional clarity.
Notwithstanding these points of additional clarification in certain
regulatory provisions, the definitions in Sec. 106.2 apply to the
entirety of 34 CFR part 106. For consistency, references in this
preamble are to the provisions as numbered in the final, and not the
proposed, regulations. Citations to ``34 CFR 106.'' are citations to
the Department's preexisting regulations and not these final
regulations.
Analysis of Comments and Changes
An analysis of the public comments and changes in the final
regulations since the publication of the July 2022 NPRM follows.
I. Provisions of General Applicability
A. Personal Stories
Numerous commenters shared personal stories with the Department.
These comments have been organized into three categories, and the
discussion of all of these comments follows.
1. Experiences Relating to Title IX Grievance Procedures
Comments: Numerous commenters shared with the Department
experiences they have had as complainants or respondents, people
supporting complainants or respondents, or persons or institutions
involved in Title IX grievance procedures.
Relating to complainants, such personal experiences included the
following:
A wide variety of people from many backgrounds and
identities shared their stories as individuals who experienced sexual
harassment and assault, whether or not the incident became the subject
of a Title IX complaint. A number of personal stories generally
recounted sexual harassment and assault incidents impacting
undergraduate and graduate students and university faculty at public
and private postsecondary institutions.
Other commenters shared stories as individuals who knew
complainants and witnessed the sexual harassment and assault, its
aftermath, and the Title IX grievance procedures. These commenters
included family members, friends and peers of the complainants, student
advocates, faculty and administrators, and individuals participating in
the Title IX grievance procedures.
Commenters described sexual harassment and assault by a
wide variety of individuals. These included classmates, professors and
faculty, student athletes, intimate partners and ex-partners, friends,
and stalkers.
Commenters described sexual harassment and assault, their
decision to engage with the Title IX grievance procedures, and their
experience with sexual harassment and assault from prior to and after
Title IX was enacted, prior to and after the 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); U.S. Dep't of Educ., Office for Civil Rights, Questions and
Answers on Title IX and Sexual Violence (Apr. 29, 2014) (rescinded in
2017) (2014 Q&A on Sexual Violence), 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 Campus Sexual Misconduct
(Sept. 2017) (rescinded in 2020) (2017 Q&A on Campus Sexual
Misconduct), and prior to and after the 2020 amendments, https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.
The Department received comments from individuals who
described a range of traumatic incidents, including inappropriate and
harassing behaviors, unwanted touching, stalking, incidents of rape or
attempted rape, and longer-term emotionally and sexually coercive or
intimidating interactions.
The Department received comments from individuals who did
not report their experiences for various reasons, including because
they feared that no one would believe them, did not know whom to report
to or the process for reporting, felt frustrated by a lack of response,
or did not want to relive the experience.
The Department received comments from individuals about
the many detrimental effects that sexual harassment and assault can
have on complainants. Individuals described the physical, emotional,
and mental impacts of sexual harassment and assault, including feeling
afraid to attend their postsecondary institution and suffering mental
health symptoms such as post-traumatic stress disorder (PTSD) and
suicidality. Individuals also described the educational impacts of
sexual harassment and assault, including the inability to complete
class assignments, dropping classes, changing majors or leaving areas
of study, transferring schools, or leaving school altogether.
The Department received comments from complainants who,
following the Title IX grievance procedures, felt that recipients did
not hold respondents accountable, or who were reprimanded or faced
repercussions for openly discussing their experiences and naming the
respondents.
The Department also received stories from individuals
about the dynamics of sexual assault and harassment in which
individuals in positions of authority, including professors, faculty,
or staff, repeatedly harassed or assaulted individuals, sometimes with
the recipient's knowledge, and without meaningful action by the
recipient to prevent continued abuse or conduct investigations into
wrongdoing.
The Department received numerous comments from
complainants who shared their views that the current Title IX system
and its implementation by recipients is not protecting individuals from
sexual harassment and assault or delivering justice for complainants
and is instead perpetuating the harm. Commenters shared that they: had
been failed by the system by being forced to relive their trauma
through the Title IX grievance procedures, while being offered few
protections; had faced a lack of resources for student complainants;
and had encountered widespread systemic shortcomings and institutional
negligence. Commenters stated that, in their experience, the Title IX
grievance procedures put complainants in danger, disrupted their
education, and allowed recipients to ignore their concerns, rather than
work with complainants to address campus safety issues.
The Department received comments from complainants about
the importance of Title IX in investigating complaints of sexual
assault and providing relief that may not be available in the criminal
justice system, but who said the 2020 amendments failed them. Some
commenters shared that the 2020 amendments fail to protect complainants
because they require cross-examination for postsecondary institutions,
the process can be very lengthy, and other factors, such as the
definition of sexual harassment, make it harder for complainants to
come forward. Other commenters shared that the Title IX grievance
procedures allow for separately tracked investigations into the same
individual, without complainants' knowledge, making it more difficult
to show an individual's pattern of misconduct.
The Department also received comments from complainants
specific to how their schools handled the Title IX grievance
procedures. Complainants
[[Page 33479]]
shared their experiences on interactions with Title IX offices that,
they felt, were mismanaged, left them feeling alienated and silenced,
and further harmed their ability to access their educational
opportunities. The Department received comments about Title IX offices
that did not inform complainants about available resources, interviewed
complainants in an inappropriate manner, and pushed complainants toward
informal resolutions, despite their stated wish to pursue a formal
hearing. Some commenters shared that student and staff efforts to
improve the Title IX grievance procedures on campus and enhance
complainant resources were rebuffed by administrators. Some commenters
shared that because of their school's handling of their Title IX
investigation, they no longer felt safe or welcome in higher education
and had either dropped out of college or changed their plans for
graduate education or careers in academia.
The Department received comments from complainants from
student populations who already face challenges to their education, or
face discrimination on campus, and about the specific burdens faced by
those populations. Commenters who experience certain mental illnesses
shared their particular susceptibility to coercive behaviors by their
assailants, both during and after their assaults, and how their
existing medical conditions made it harder both to be taken seriously
by investigators and to recover enough to successfully engage in their
educational experience. Other commenters, complainants who identify as
LGBTQI+, shared that their Title IX investigators and school
administrators did not take their complaints seriously and that the
entire experience made them want to leave school.
Relating to respondents, commenters reported personal experiences
that included the following:
A variety of people shared their stories as respondents.
Commenters included respondents who were postsecondary institution
faculty and students, as well as friends, acquaintances, and family of
respondents. The personal stories recounted the impact of Title IX
investigations on the respondents when they were undergraduate and
graduate students and university faculty at public and private
postsecondary institutions.
Other commenters shared the negative consequences that an
allegation of sexual harassment and assault can have on respondents,
whether or not they are formally disciplined or found responsible at
the conclusion of the grievance procedures. Commenters shared how such
allegations can negatively impact someone's life, leave them with
mental anguish and a tarnished record, and negatively impact their
educational future and career opportunities.
The Department received some comments from individuals who
expressed concern that the Title IX grievance procedures were generally
unfair to respondents. Some commenters were concerned that
investigators in certain Title IX investigations presume that the
respondent was guilty, no matter the evidence.
The Department also received comments from individuals who
expressed concern that the Title IX grievance procedures allow for
false accusations. Some commenters shared that they knew multiple
respondents who were involved in situations in which the complainants
had originally initiated physical intimacy to start a relationship and
only brought complaints when that did not materialize. Others expressed
their views that complainants sometimes do not tell the truth and make
up accusations to resolve personal disputes. Others expressed
frustration that what they viewed as normal sexual exploration was
being misconstrued as sexual assault.
The Department received comments from respondents who were
forced to leave postsecondary institution faculty positions as part of
settlements for investigations that they felt were unfair and based on
misconstrued or fabricated facts. Commenters who were respondents said
they felt coerced into signing settlement agreements because they did
not have the emotional or financial capability to continue to defend
themselves.
2. Experiences Relating to Pregnancy
Comments: Several commenters shared with the Department experiences
they have had with respect to pregnancy.
Some commenters shared stories of students who experienced
discrimination based on pregnancy or related conditions and lactation.
One commenter shared the experience of someone who was excluded from
school activities due to pregnancy and was required to attend a
different school farther away, without transportation. The commenter
noted that if the proposed regulations had been in place, the student
would have understood her rights and more could have been done to
protect her right to continue her education at the original school. One
commenter mentioned a student who considered quitting school due to
lack of an appropriate lactation space. The commenter referred to
another student whose school denied lactation breaks entirely, causing
the student to lose her milk supply. Another commenter shared a
personal experience supporting a high school student whose academic
honors designation was revoked because of rumors that she terminated a
pregnancy. Some commenters stated that they were never informed of
their rights as pregnant and parenting students under Title IX,
including available supports for the healthcare needs of pregnant
women. Some commenters described experiences of pregnancy-based
harassment, noting that students who become pregnant are often
subjected to unwanted sexual attention, shame, and even punishment.
Other commenters supported strengthened protection for pregnant
employees, sharing experiences of their own, or of friends or co-
workers who experienced employment problems, such as a termination of
employment due to difficulties related to pregnancy.
3. Experiences Relating to Sexual Orientation and Gender Identity
Comments: The Department received numerous comments in support of
and in opposition to the July 2022 NPRM's clarification of the
application of Title IX's prohibition on sex discrimination to
discrimination based on sexual orientation and gender identity.
In support of the clarification that Title IX prohibits
discrimination based on sexual orientation and gender identity,
commenters shared personal experiences including the following:
Commenters from more than 40 States in all regions of the
United States and in communities across the political spectrum shared
their experiences as members of the LGBTQI+ community, or as parents,
teachers, and friends of LGBTQI+ individuals. They described bullying
and harassment of students based on sexual orientation and gender
identity that ranged from single interactions with peers to systemic
concerns such as constant verbal harassment, bullying, and threats of
physical violence that are often ignored or excused by recipients from
early elementary school through graduate school.
[cir] Some parents expressed concern that recipients do not
understand the importance of a safe educational environment. Other
parents expressed gratitude for the life-changing impact schools that
prevent and meaningfully address incidents of harassment and bullying
have on LGBTQI+ students.
[[Page 33480]]
[cir] Teachers shared their experiences supporting LGBTQI+ students
in educational environments that do not support or encourage all
students, which they stated impacts the ability of LGBTQI+ students to
thrive and academically succeed.
[cir] School counselors shared their experiences providing academic
and mental health supports to LGBTQI+ students being bullied or
experiencing harassment and discrimination. Counselors stressed that
supportive adults and educational environments can save LGBTQI+
students' lives.
LGBTQI+ students and their parents and teachers shared
that harassment, bullying, and threats of physical violence leave
students in constant fear, cause social anxiety and stress disorders,
and too frequently result in suicidality. Some students who identify as
LGBTQI+ and as part of a racial or ethnic minority group or as a
student with a disability discussed feeling pressure to hide their
identity, which led them to avoid reporting harassment or
discrimination that occurs at school.
A number of commenters living in districts or States where
local government has discussed or enacted bills that limit the rights
of LGBTQI+ people, shared how these actions negatively impact the
mental well-being and academic experience of LGBTQI+ students.
Many commenters shared experiences unique to nonbinary and
transgender students.
[cir] Commenters who identified as nonbinary or transgender shared
their experiences being threatened and physically attacked and
explained the lasting anxiety and fear that those experiences cause in
addition to the significant impact such experiences have on their
ability to engage academically.
[cir] Transgender students shared being forced to use school
facilities that do not align with their gender identity, feeling unsafe
using the facilities, or not having access to gender neutral
facilities.
[cir] Commenters asserted that a safe educational environment for
nonbinary and transgender students is a matter of life or death. Many
transgender students shared that they or their friends had attempted
suicide because of the discrimination and harassment they had
experienced.
[cir] Transgender students in school districts that they viewed as
supportive shared the positive impact such schools have on their
social, emotional, and academic well-being.
In opposition to clarification that Title IX prohibits
discrimination based on sexual orientation and gender identity,
commenters described personal experiences including the following:
Many commenters asked that Title IX focus only on ensuring
cisgender girls and women have equal access to education.
[cir] Two grandmothers shared their memories of being forced to
fundraise for basic sports equipment and being told not to pursue
certain careers because they were girls.
[cir] Another grandmother who worked with pregnant and parenting
teens shared her experience witnessing these students face significant
obstacles and prejudices. Both she and a minister who has worked with
women who have experienced sex discrimination, including sexual
assault, expressed concern that the proposed regulations would, in
their view, harm many cisgender women and their futures.
[cir] Some commenters worried that the proposed regulations would
negatively impact the developmental progress of their children.
Some commenters expressed concern that the proposed
regulations would negatively impact parents and families.
[cir] Commenters, including grandparents and parents, shared their
families' experiences with different educational environments, and
expressed general concern that the proposed regulations would, in their
view, interfere in the personal lives of families.
[cir] Other commenters expressed concern that the proposed
regulations would diminish the role of parents in helping children make
decisions.
Some commenters expressed concern that cisgender students
experience discomfort at school when they are required to participate
in activities and share facilities with transgender students.
Discussion: The Department appreciates the time and effort spent by
commenters who shared their personal experiences. The Department
thoughtfully and respectfully considered all of the personal
experiences, including of the many individuals who: have experienced
sex-based harassment and been complainants in Title IX grievance
procedures; have been respondents in Title IX grievance procedures;
have looked to their elementary schools, secondary schools, and
postsecondary institutions for support following sex-based harassment
and for prompt and equitable grievance procedures that are fair to all
involved; have experienced pregnancy or related conditions; have worked
with a parenting student; have experienced discrimination based on
sexual orientation and gender identity; have a variety of viewpoints
regarding sexual orientation and gender identity; and have supported or
witnessed other individuals having such personal experiences.
Many of the stories shared in the comments echo and expand upon
themes that the Department heard through the June 2021 nationwide
virtual public hearing on Title IX (June 2021 Title IX Public Hearing)
and in listening sessions and stakeholder meetings held in 2021 and
2022. As the Department explained in the July 2022 NPRM, the
overarching goal of the proposed regulations was to ensure that no
person experiences sex discrimination in education programs or
activities that receive Federal financial assistance. See 87 FR 41396.
The Department prepared the July 2022 NPRM with that goal in mind to
assist recipients in implementing 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. See id. As a result of the
robust public comment process, including from individuals personally
affected by these issues, these final regulations even better reflect
this goal.
Changes: Specific changes made to the proposed regulations are
described in the applicable sections of this preamble.
B. Purpose
1. Section 106.1 Purpose
Comments: One commenter expressed general support for proposed
Sec. 106.1. Another commenter asked the Department to consider
removing ``(with certain exceptions)'' from proposed Sec. 106.1 to
more forcefully state the purpose of Title IX. Another commenter urged
the Department not to remove ``of the Education Amendments of 1972''
from current Sec. 106.1 because there are other Federal laws named
``Title IX.''
Another commenter objected to the language in proposed Sec. 106.1
that states ``whether or not such program or activity is offered or
sponsored by an educational institution as defined in this part,''
arguing that this would cover conduct outside of the educational
context and exceed the scope of Title IX.
Discussion: The Department declines the commenter's suggestion to
remove the reference to Title IX's exceptions from Sec. 106.1 because
those exceptions are an important component of the statute. See 20
U.S.C. 1681(a)(1)-(9). The Department also declines the
[[Page 33481]]
commenter's suggestion to use Title IX's full name in this section. The
term ``Title IX'' is defined in Sec. 106.2 to include the original
statute and subsequent amendments, which are also relevant to Title
IX's purpose. Further, the risk is low that the public will confuse a
reference to ``Title IX'' in the Department's Title IX regulations with
another Federal law.
The Department disagrees with the commenter who objected to
language in Sec. 106.1 recognizing that Title IX applies to recipients
other than educational institutions. This language has been in the
purpose section of the regulations since the regulations were first
issued in 1975 and reflects the fact that recipients that are not
educational institutions (e.g., libraries, hospitals) also offer
education programs and activities, and those education programs and
activities are covered by Title IX. See 20 U.S.C. 1681(a) (providing
that Title IX's prohibition on sex discrimination applies to ``any
education program or activity receiving Federal financial
assistance''); 20 U.S.C. 1687 (defining ``program or activity'' to
include ``a department, agency, special purpose district, or other
instrumentality of a State or a local government''); see also U.S.
Dep't of Health, Educ., & Welfare, Final Rule: Nondiscrimination on the
Basis of Sex In Education Programs and Activities Receiving or
Benefiting from Federal Financial Assistance, 40 FR 24128, 24137 (June
4, 1975).
Changes: None.
C. Definitions 3
---------------------------------------------------------------------------
\3\ Section I.C, ``Definitions,'' and Section I.D, ``Other
Definitions,'' do not address all the definitions in the final
regulations because certain definitions are discussed in other
sections. For example, the definition of ``confidential employee''
is discussed in Section II.B as part of a broader discussion of
confidential employee requirements that includes discussion of Sec.
106.44(d).
---------------------------------------------------------------------------
1. Section 106.2 Definition of ``Administrative Law Judge''
Comments: Commenters generally supported the proposed definition of
``administrative law judge'' and said it would aid in consistent and
effective enforcement of Title IX. One commenter interpreted the
proposed definition of ``administrative law judge'' to mean that a
hearing is required as part of a recipient's grievance procedures under
the proposed regulations.
Discussion: The Department acknowledges commenters' support for the
Department's proposed definition of ``administrative law judge.'' The
Department believes one commenter may have misunderstood the definition
as requiring a hearing for all Title IX grievance procedures. As
explained in the July 2022 NPRM, this revised definition of
``administrative law judge'' specifically refers and applies to a
hearing held under Sec. 106.81, which pertains to the Department's
efforts to secure a recipient's compliance with Title IX. See 87 FR
41399. A hearing under Sec. 106.81 is distinct from a hearing that may
be conducted as part of a recipient's Title IX grievance procedures
under Sec. Sec. 106.45 or 106.46, neither of which requires a live
hearing or participation of an administrative law judge.
Changes: None.
2. Section 106.2 Definition of ``Complainant''
General Support
Comments: Commenters expressed a range of perspectives and varied
reasons for supporting the proposed regulations' broadened definition
of ``complainant,'' which would permit a complaint by someone who is
not currently a student or employee as long as that person was
participating or attempting to participate in a recipient's education
program or activity at the time of the alleged discrimination. Some
commenters said that the restrictions of the 2020 amendments, requiring
a complainant to be participating or attempting to participate in the
recipient's education program or activity at the time of filing a
complaint rather than at the time of the alleged discrimination, made
it more difficult for recipients to investigate, address, and stop
sexual harassment, and forced recipients to dismiss Title IX complaints
brought by prospective students, former students, and former employees
who experienced sexual harassment under the recipient's education
program or activity.
Commenters said there is no reason to exclude people from the
protection of Title IX just because they left the school where the
discrimination allegedly occurred. Commenters noted a variety of
reasons that cause students to leave a school before filing a
complaint, including to get mental or emotional support, to regain a
sense of control, for fear of potential retaliation, for fear of losing
support or recommendations from academic advisors, or simply because
outside circumstances lead students to move in and out of educational
programs over time. Commenters stated that allowing former students to
make a complaint will encourage more reporting, prevent or deter future
misconduct, and allow students to obtain closure and resolution and
even return to school if the complaint is resolved. Commenters also
asserted that the proposed definition would fill gaps left by the 2020
amendments and ensure schools are held accountable for their responses
to sexual harassment. Some commenters appreciated that the proposed
definition of ``complainant'' did not include the term ``victim,''
noting that omitting stigmatizing and harmful words from the
regulations will promote reporting.
One commenter said that delayed reporting is so common in sexual
assault and other gender-based violence cases that the requirement to
dismiss complaints from former students has prevented recipients from
addressing conduct that could affect the campus environment. One
commenter said that survivors need to feel validated and cited research
finding that 59 percent of survivors wait to disclose, and usually
disclose after first talking with family or friends. Commenters relied
on multiple news stories, studies, and court decisions to illustrate
that sexual harassment can cause individuals to drop out of school or
transfer, and that the ability to address alleged harassment is
important, both for the individuals who experience harassment and to
prevent broader harm.
Several commenters generally supported the proposed definition of
``complainant,'' but suggested additional clarification or
modification. One group of commenters supported the right of persons to
make a complaint as long as they were participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged sex discrimination, but requested that the
Department provide guidance and clarification regarding how a recipient
should proceed in such cases, particularly because the Department
proposed eliminating Sec. 106.45(b)(3)(ii) of the 2020 amendments,
which allows for the dismissal of a complaint when ``specific
circumstances'' prevent the recipient from gathering evidence
sufficient to reach a determination as to the formal complaint or
allegations therein. Another commenter recommended that the Department
add language making it clear that postdoctoral trainees, fellows, and
all other individuals training under recipient institutions can be
complainants, whether as a student or an employee.
One commenter suggested that the Department make this provision
retroactive to the extent possible because students who leave their
schools prior to the effective date of these revised regulations should
have a grace period to make a Title IX complaint under the new
regulations.
[[Page 33482]]
Discussion: With respect to a complaint brought by a former student
or employee who was participating or attempting to participate in the
recipient's education program or activity at the time of the alleged
sex discrimination, the recipient should proceed just as it would with
all other complaints under the recipient's grievance procedures in
accordance with Sec. 106.45, and if applicable Sec. 106.46. If, at
the time the complaint is filed, however, the respondent is no longer
participating in the recipient's education program or activity or is no
longer employed by the recipient, the complaint may be dismissed under
Sec. 106.45(d)(1)(ii). As explained in the July 2022 NPRM, the
Department proposed to remove Sec. 106.45(b)(3)(ii) because the term
``specific circumstances'' under which complaints could be dismissed
was vague and undefined, and the Department determined that it would be
preferable to revise the dismissal standard to instead include several
defined bases for discretionary dismissal. 87 FR 41478.
The Department declines to specify in the final regulations that a
postdoctoral trainee or fellow may be a complainant. We note, however,
that such an individual could fall into the definition of complainant
as a student, employee, or other individual participating or attempting
to participate in the recipient's education program or activity,
particularly if--as the commenter suggests--they are training under a
recipient postsecondary institution at the time of the alleged sex
discrimination.
While the Department understands commenters' desire to ensure that
former students who were subjected to sex discrimination prior to the
effective date of these regulations can still pursue a complaint, the
Department does not intend the final regulations to be enforced
retroactively, as stated in the July 2022 NPRM. 87 FR 41398. Under
Federal law, agencies may only issue regulations with retroactive
effect if the authorizing statute expressly grants such authority. See
5 U.S.C. 551(4) (Administrative Procedure Act provision defining a
``rule'' as an agency action with ``future effect''); see also Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (``[A] statutory grant
of legislative rulemaking authority will not, as a general matter, be
understood to encompass the power to promulgate retroactive rules
unless that power is conveyed by Congress in express terms.''). Title
IX contains no such express grant of authority. For more information
about retroactivity, see the discussion of Effective Date and
Retroactivity (Section VII.F).
Changes: At the end of paragraph (1) of the definition of
``complainant,'' after ``Title IX,'' the Department added the words
``or this part'' for the reasons discussed in the Background/
Introduction, Executive Summary section of this preamble. For the same
reasons, the Department also added ``or this part'' after the reference
to Title IX in paragraph (2). The Department also has made a minor
technical edit by replacing ``when the alleged sex discrimination
occurred'' with ``at the time of the alleged sex discrimination'' in
final Sec. 106.45 (a)(2)(iv)(B).
General Opposition
Comments: Some commenters expressed general opposition to the
definition of ``complainant'' in Sec. 106.2, including on the grounds
that it exceeds the Department's authority or does not align with Title
IX and case law.
Some commenters asserted that the proposed definition of
``complainant'' was too broad, including because it applies to all sex
discrimination and not just sexual harassment; because former students
and employees allegedly do not face barriers to education and thus fall
outside the scope of Title IX; and because including such individuals
allegedly would allow them to make a complaint decades after leaving
the institution, including opportunistic complaints about conduct that
was not prohibited at the time it occurred. Commenters asserted that a
lack of time limits for complainants would be burdensome for
recipients, parties, and witnesses, result in complaints that are
difficult to investigate, and likely lead to a waste of resources,
abusive practices, and unfair or unsatisfactory outcomes that do not
further Title IX's goal of addressing sexual harassment in education
programs and activities, due in part to limitations on remedies a
university can impose after a student is no longer enrolled. Some
commenters questioned whether volunteers who experience sex
discrimination would be able to bring a complaint subject to the
grievance procedures and suggested that may inhibit the ability to
recruit volunteers.
Some commenters anticipated that the volume of Title IX complaints
would increase because of the proposed definition of ``complainant''
together with other proposed changes, such as the inclusion of
discrimination based on gender identity as a form of sex
discrimination, the allowance of allegations that involve off-campus
conduct, the removal of the actual knowledge standard, and the
requirement that a recipient's employees report allegations to the
Title IX Coordinator even when there is no complainant or the
individual who experiences sex discrimination does not wish to report
it. One commenter suggested that if the Department is no longer going
to require a complainant to be engaged in the education program or
activity at the time the complaint is filed, it should make that
requirement apply only prospectively.
Discussion: As the Supreme Court has recognized, the Department has
regulatory authority under Title IX to issue regulations that the
Department determines will best effectuate the purpose of Title IX, and
to require recipients to take administrative action to effectuate the
nondiscrimination mandate of Title IX. Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 292 (1998). The Department disagrees that the
definition of ``complainant'' is too broad. As the Department explained
in the July 2022 NPRM, it is appropriate to apply the same definition
of ``complainant'' to all forms of sex discrimination, not just sex-
based harassment. 87 FR 41407-08. These final regulations are intended
to effectuate the purpose of Title IX, which is to eliminate any
``discrimination on the basis of sex in any education program or
activity receiving Federal financial assistance''--not just sex-based
harassment. 34 CFR 106.1; 20 U.S.C. 1681(a); see also 87 FR 41393.
Accordingly, consistent with the longstanding requirement that a
recipient must have grievance procedures that provide for the ``prompt
and equitable resolution of student and employee complaints alleging
any action that would be prohibited by'' the Title IX regulations, 40
FR 24128, the final regulations also require a recipient to adopt
grievance procedures that provide for the prompt and equitable
resolution of all complaints of sex discrimination, not just sexual
harassment, and to take other necessary steps to provide an educational
environment free from sex discrimination, see 87 FR 41390. This
requirement will help recipients fully and fairly implement Title IX's
nondiscrimination mandate in their education programs or activities and
is within the Department's authority to ensure compliance with the law.
The Department does not agree with commenters' contention that
former students or employees fall outside the scope of Title IX because
they no longer face barriers to participation in the recipient's
education program or activity. Title IX protects all ``person[s]'' from
sex discrimination, 20 U.S.C.
[[Page 33483]]
1681(a)(1), and the relief it affords is not limited to persons who are
presently experiencing sex discrimination as long as the discrimination
they allegedly experienced was within the scope of the statute's
protections at the time it occurred. This means that former students
and employees may seek relief under Title IX if they were previously
``excluded from participation in,'' ``denied the benefits of,'' or
``subjected to discrimination under any education program or activity
receiving Federal financial assistance.''
Title IX also protects students, employees, and others who continue
participating in the education program or activity from sex
discrimination that may persist or may be remedied after the specific
complainant no longer participates. Limiting a recipient's
responsibility to address sex discrimination to those circumstances in
which a complainant continues participating in the program or activity
fails to ensure that others who continue to participate benefit from
the nondiscrimination guarantee in Title IX. As other commenters noted,
the revised definition of ``complainant'' could increase the reporting
of sex discrimination because individuals struggle with the decision
whether to report an incident at the time it happens or while they are
still a student or employee, and the Department maintains that
encouraging reporting is an important factor in ensuring that
recipients can meet their Title IX nondiscrimination obligations. This
definition of ``complainant'' is well within the scope of Title IX
because it will help to ensure that a recipient operates its education
program or activity free from sex discrimination.
The Department recognizes commenters' concerns that the definition
of complainant together with other aspects of the final regulations,
including new Sec. 106.10 and changes to Sec. Sec. 106.11 and 106.44,
will likely result in an increase in Title IX complaints for some
recipients and possible additional administrative costs for some
recipients. However, it is the Department's position that ensuring a
recipient fully addresses all sex discrimination occurring under its
education program or activity, consistent with Title IX, is not
optional, is of paramount importance, and properly accounts for
financial costs to a recipient and for pecuniary and non-pecuniary
costs to students who experience sex discrimination in a recipient's
education program or activity. For more discussion of the Department's
evaluation of the costs and burdens of the final regulations, see the
Regulatory Impact Analysis.
The Department has carefully considered the commenters' concerns
and disagrees that the change in the definition of ``complainant'' will
invite new complaints decades after a student or employee has left a
recipient institution alleging conduct that was not prohibited at the
time it occurred. As stated in the July 2022 NPRM and in the discussion
of Effective Date and Retroactivity (Section VII.F), the Department
intends the final regulations to be enforced prospectively and not
retroactively. 87 FR 41398. Therefore, if an individual who left a
recipient institution makes a complaint requesting compliance solely
with regulatory requirements that were not in effect at the time of the
alleged conduct, the recipient would dismiss the complaint.
Independently, a recipient may dismiss a complaint under Sec.
106.45(d)(1)(ii) if the respondent is not participating in the
education program or activity and is not employed by the recipient, or
under Sec. 106.45(d)(iv) if the allegations, even if proven, would not
constitute sex discrimination under Title IX or this part.
For the reasons discussed here and above in the section on the
Definition of Complainant: General Support, the Department also has
determined that the benefits of allowing complaints by former students
and employees who were subjected to sex discrimination while
participating or attempting to participate in a recipient's education
program or activity justifies the potential risk and investigative
challenges of a complaint filed after someone leaves a recipient
institution. As noted above, commenters reported that sex-based
harassment can cause targeted students to drop out of school or
transfer schools to get away from the discriminatory environment or
remove themselves from a harmful or threatening situation; others may
fear retaliation and thus not feel comfortable making a complaint until
after they leave the institution. Commenters also noted that an
employee who experiences harassment may leave their job or fear
retaliation and refrain from reporting the harassment until they have
taken a new job. Under such circumstances, it is important for the
recipient to fulfill its Title IX obligations: to ensure that students
and employees who want to return can do so free from sex
discrimination; to prevent further harm and to ensure that a hostile
environment does not persist for the remaining members of the school's
community; and to investigate and properly address allegations of sex
discrimination in its education program or activity.
Finally, the Department disagrees with commenters who suggested
that covering volunteers in the definition of ``complainant'' will make
it more difficult for recipients to recruit and retain volunteers.
Title IX protects all ``person[s]'' from sex discrimination under a
recipient's education program or activity, 20 U.S.C. 1681(a), and
ensuring that volunteers can participate free from sex discrimination
should aid in recruitment and retention of such resources, not hinder
it.
Changes: None.
Participating or Attempting To Participate
Comments: Some commenters expressed support for the proposed
definition of ``complainant,'' but asked the Department to define and
provide examples of certain terms within the definition, including
``attempting to participate'' and ``participating or attempting to
participate in the recipient's education program or activity.'' One
commenter suggested that ``applying'' would be a clearer term.
Discussion: Whether someone is participating or attempting to
participate in a recipient's education program or activity requires a
fact-specific analysis to be made on a case-by-case basis. The
Department explained in the July 2022 NPRM that under the proposed
definition of ``complainant,'' someone who is not a student (or person
authorized to act on behalf of a student) or an employee could still be
a complainant if they were participating or attempting to participate
in the recipient's education program or activity as, for example, a
prospective student, or a guest speaker. 87 FR 41408. The participation
requirement was added in the 2020 amendments. It is not meant to limit
who can report sex discrimination or a recipient's obligation to
respond promptly--such as by offering supportive measures and
explaining the process for filing a complaint--but rather to prevent a
recipient from being legally obligated to initiate its grievance
procedures based on a complaint from a person having no relationship to
the recipient. 87 FR 41409 (citing preamble to the 2020 amendments, 85
FR 30138, 30198). The definition of ``complainant'' in these final
regulations shifts the focus of the analysis, however, from whether the
participation or attempted participation occurred at the time the
complaint was filed--as the 2020 amendments require--to the time of the
alleged sex discrimination. See 87 FR 41410. The Department has
concluded
[[Page 33484]]
that requiring participation or attempted participation at the time of
the alleged discrimination is better aligned with Title IX's text and
its goal of ensuring that a recipient operates its education program or
activity free from sex discrimination because it addresses conduct that
would have interfered with the complainant's ability to participate in
the recipient's education program or activity. As the First Circuit
explained in Doe v. Brown University, 896 F.3d 127, 132 & n.6, 133 (1st
Cir. 2018), complainants are not limited to a university's enrolled
students; they can include members of the public who ``are either
taking part or trying to take part of a funding recipient institution's
educational program or activity'' when they attend events such as
campus tours, sporting events, and lectures, as long as the alleged
discrimination relates to the individual's participation or attempted
participation in such program or activity. The participation
requirement is thus consistent with Federal appellate decisions,
including one handed down since the issuance of the July 2022 NPRM,
holding that the scope of Title IX's ``no person'' and ``subject to
discrimination under'' language extends to persons who are not students
or employees but who experience discriminatory treatment while
participating, or at least attempting to participate, in a recipient's
education program or activity. See Snyder-Hill v. Ohio State Univ., 48
F.4th 686, 707-09 (6th Cir. 2022) (reversing district court's dismissal
of Title IX claims by non-student plaintiffs who were allegedly subject
to sexual abuse while attending or participating in sporting events,
summer camp, or a tour of the school's athletics facilities), reh'g
denied, 54 F.4th 963 (6th Cir. 2022), cert. denied, 143 S. Ct. 2659
(2023).
The Department does not agree that ``applying'' is a better way to
describe ``attempting to participate'' because ``applying'' is too
narrow in scope. Even someone who is not applying for admission to a
recipient might be participating or attempting to participate in its
education program or activity, such as a prospective student visiting a
campus, a visiting student-athlete, or a guest speaker. See 87 FR
41408.
Changes: None.
Requests To Broaden Definition
Comments: Several commenters suggested broadening the definition of
``complainant,'' including by removing the distinction between
students, employees, and other persons and by including all campus
visitors whether or not they are participating or attempting to
participate in a recipient's education program or activity at the time
of the alleged sex discrimination. With respect to removing the
participation requirement for visitors, commenters said that if the
goal is to prevent recurrence of discrimination, a recipient still has
the responsibility to address misconduct when a visitor to a
recipient's campus is sexually assaulted by a student, even if the
visitor may not be participating or attempting to participate in the
recipient's education program or activity at the time of the alleged
sex discrimination. Commenters also proposed eliminating the
participation or attempted participation requirement altogether. One
commenter suggested simply covering ``a student, employee, or other
person alleged to have been subjected to unlawful sex discrimination
under Title IX,'' and noted that ``conduct'' may not be the correct
term to use because Title IX can be violated by commission of an act
but also by omission, or a failure to act.
Discussion: The Department declines to further broaden the
definition of ``complainant'' beyond changing the frame of reference
from participation at the time of the complaint to the time of the
alleged discrimination. Consistent with case law on this issue, it is
appropriate to distinguish between individuals who have a clear
connection to the recipient (students and employees), and other
individuals. The Department purposefully limited the individuals who
can be complainants to those who are participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged discrimination because the Department does not
understand Title IX as imposing a duty on a recipient to address
conduct that could constitute sex discrimination when that conduct
could not have ``excluded'' the individual from ``participating in'' or
denied them the benefits of a recipient's education program or
activity. 20 U.S.C. 1681(a). As the First Circuit has explained, this
language means that a ``person must suffer unjust or prejudicial
treatment on the basis of sex while participating, or at least
attempting to participate, in the funding recipient's education program
or activity.'' Brown Univ., 896 F.3d at 131. As discussed above, a
visitor could be a complainant, but that will be a fact-based
determination that will depend, for example, on the reason for the
visit and what the individual was doing at the time of the alleged
discrimination.
Finally, the Department agrees that Title IX can be violated not
only by commission of an act but also by a failure to act. No change is
needed, though, because the phrase ``conduct that could constitute sex
discrimination'' includes both a recipient's actions and its inaction
in derogation of its Title IX obligations. See, e.g., 87 FR 41423
(stating that ``[t]he 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'').
Changes: None.
3. Section 106.2 Definition of ``Complaint''
General Support
Comments: Some commenters supported the proposed expansion of
``complaint'' to include complaints made orally or in writing and with
or without a signature, and further supported removing the requirement
from the 2020 amendments that a formal complaint be submitted before a
recipient can investigate or offer informal resolution options. In
support of removing the formal complaint requirement, some commenters
pointed out the challenges it posed for certain students and their
families because of age, disability, or ability to write or
communicate. Some commenters asserted that the formal complaint
requirement is arbitrary and overly prescriptive and allows a recipient
to disregard valid complaints that do not conform exactly to the
specific complaint requirements. Other commenters shared that even
postsecondary students are hesitant to submit formal complaints, in
part out of fear of retaliation due to the level of detail required,
and stated that deterring complaints of sex-based harassment
contravenes the purpose of Title IX.
Some commenters appreciated that the proposed definition of
``complaint'' would offer more flexibility that will streamline the
complaint process, empower students, and better serve the purpose and
intent of Title IX. Some commenters pointed out that the proposed
definition of ``complaint'' will provide more opportunities for
students with disabilities or who need alternative forms of
communication to make complaints.
Some commenters asked for clarification on what constitutes a
``request to the recipient'' to initiate grievance procedures, citing
the risk of confusion and liability to recipients without further
clarification, and a need for more information in order to train staff
and ensure that employees
[[Page 33485]]
understand their responsibilities. Some commenters expressed concern
that a complainant may not realize they have to ask the recipient to
initiate the grievance procedures, and requested clarification on
whether a complainant must specifically use the phrase ``initiate the
recipient's grievance procedures'' or whether a complainant can use
alternative language to prompt the recipient to initiate the grievance
procedures, such as ``start an investigation'' or ``look into this
matter of sex discrimination.'' One commenter asked whether only asking
questions about the grievance procedures would trigger an
investigation.
One commenter who commended the proposed removal of the formal
complaint requirement suggested that the Department require some form
of written documentation of the complaint, short of the formal
complaint requirement, to commence an investigation and provide clarity
for both students and recipients.
One commenter who supported the proposed definition of
``complaint'' requested that the regulations explicitly state that oral
or written complaints from students with disabilities may be made
through adaptive communication formats such as sign language, physical
gestures, drawings, or communicating through an aide or caregiver,
citing these formats as critical for non-verbal students or students
with other communication challenges.
One commenter suggested that the proposed definition of complaint
use the term ``verbal'' instead of ``oral,'' noting that ``verbal'' is
more precise.
Discussion: The Department acknowledges commenters' support for the
proposed revision of the definition of ``complaint.'' The Department
shares commenters' concerns that the proposed definition might be
confusing to recipients or complainants because a recipient might
interpret the proposed definition to mean that, to make a complaint,
the complainant must specifically ask the recipient to ``initiate'' its
``grievance procedures'' and might think the complainant needs to
reference Sec. 106.45. The Department recognizes that a complainant
may not be familiar with those terms or know what they mean, even
though the complainant may want the recipient to investigate and
determine whether sex discrimination occurred. The Department therefore
has modified the proposed definition of a Title IX ``complaint'' to be
an oral or written communication to the recipient that objectively can
be understood as a request for the recipient to investigate and make a
determination about alleged sex discrimination under Title IX and the
relevant implementing regulations. Accordingly, a complainant need not
use any particular ``magic words''--such as the phrase ``initiate the
recipient's grievance procedures''--in order to trigger a recipient's
obligation to investigate the matter. To be clear, by saying that a
communication constitutes a complaint when it ``objectively'' can be
understood as a request to investigate and make a determination, the
Department means it can be understood as such by a reasonable person.
This is a fact-specific determination, but in general amounts to more
than a student's general questions about grievance procedures.
The Department also declines to require some form of written
documentation of the complaint, short of the formal complaint
requirement, to commence an investigation. The Department notes that
Sec. 106.8(f) of these final regulations includes recordkeeping
obligations such that the recipient will have to maintain (1) for each
complaint of sex discrimination, records documenting the informal
resolution process or the grievance procedures and the resulting
outcome, and (2) for each notification that the Title IX Coordinator
receives of information about conduct that reasonably may constitute
sex discrimination under Title IX or the implementing regulations,
records documenting the actions the recipient took to meet its
obligations under Sec. 106.44. Exactly how to document the information
the recipient receives and the steps the recipient takes in response is
appropriately left up to each recipient.
The Department appreciates the suggestion to specify in the
regulatory text that a recipient is required to facilitate
communication with a complainant using adaptive formats as required to
accommodate their needs, but the Department does not think that such a
change is necessary. The phrase ``oral or written'' is broad enough to
include complaints made using most adaptive communication formats, and
it would be unreasonable for a recipient to refuse to consider a
complaint made, for example, using sign language. Further, if a
complainant has a disability, that individual retains full rights under
Section 504 and the ADA, as applicable.
In addition, the Department declines to change the word ``oral'' to
``verbal.'' The primary definition of ``verbal'' is relating to or
consisting of words, which sometimes is understood as spoken and other
times as written. In contrast, the primary definition of ``oral'' is
uttered by the mouth or in words and is understood to be spoken. See
Verbal, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/verbal (last visited Mar. 12, 2024); Oral, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/oral (last
visited Mar. 12, 2024). Therefore, the Department believes the term
``oral'' is more consistent with the intended meaning.
Changes: The Department has revised the definition of ``complaint''
in Sec. 106.2 to be an oral or written request to the recipient that
objectively can be understood as a request for the recipient to
investigate and make a determination about alleged discrimination under
Title IX and this part.
General Opposition
Comments: Some commenters opposed allowing oral complaints,
asserting that the proposed definition of ``complaint'' exceeds the
Department's statutory authority and is inconsistent with Title IX and
case law.
Some commenters questioned the integrity of oral complaints,
equated them with hearsay, and asserted that they could lead to
incomplete or incorrect complaints and mishandled investigations. Some
commenters argued that a written accounting of allegations requires a
level of certainty regarding the nature and scope of the allegations,
allows a recipient to make informed preliminary assessments on whether
and how to proceed, and enables a recipient to assess the complainant's
credibility and consistency over time. Some commenters asserted that
the writing and signature requirements under the 2020 amendments should
be retained because they require deliberation and informed action,
including considering the consequences of filing a complaint.
Some commenters asserted that the proposed definition of
``complaint'' would contradict the definition that OCR uses for
enforcement purposes, noting that OCR requires individuals submitting
complaints to OCR to submit a written statement and does not consider
oral allegations that are not reduced to writing to be a complaint.
Discussion: Contrary to commenters' assertions, the definition of
``complaint'' in Sec. 106.2 does not exceed the scope of the
Department's congressionally delegated authority under Title IX. 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.'' 28 U.S.C. 1681(a).
The Supreme Court has recognized that the Department has authority
under
[[Page 33486]]
Title IX to issue regulations that the Department determines will best
effectuate the purpose of Title IX, and to require a recipient to take
administrative action to effectuate the nondiscrimination mandate of
Title IX. See, e.g., Gebser, 524 U.S. at 292. The final regulations,
including the definition of ``complaint'' in Sec. 106.2, govern how a
recipient responds to allegations of sex discrimination in its
education program or activity and were promulgated to effectuate the
purposes of Title IX. They will help recipients fully and fairly
implement Title IX's nondiscrimination mandate in their education
programs or activities.
The Department disagrees with the assertion that the integrity of a
Title IX investigation or complaint depends on whether a recipient
requires the complaint to be in writing. There are a number of
procedural protections built into the grievance procedure requirements
in Sec. 106.45, and if applicable Sec. 106.46, which are designed to
protect the integrity of a recipient's investigation and determination
and to ensure a fair process for all parties, such as the requirements
that a recipient provide the parties with an equal opportunity to
access the evidence or an accurate description of the evidence (and if
the recipient provides a description, the parties may request and then
must receive access to the underlying evidence) and have an impartial
decisionmaker resolve complaints. See 87 FR 41485; Sec.
106.45(f)(4)(i), (b)(2). While a written complaint may help establish
the boundaries of an investigation, it is neither necessary nor
sufficient for doing so, and each recipient is responsible for
following its grievance procedures and taking any additional steps it
deems necessary to ensure its investigation and determination are
sound. In addition, allowing complaints to be made orally is necessary
for a recipient to ensure it is learning of and addressing all sex
discrimination in its education program or activity, so any potentially
increased burden on recipients is justified by the benefits of
fulfilling Title IX's nondiscrimination mandate.
The Department also disagrees with the suggestion that a
complainant will only carefully consider the consequences of making a
complaint if the complaint is written. Some commenters appeared to
assume that if complaints are easier to make, some would be made
hastily, allegedly increasing the risk they are without merit and
therefore unreasonably burdening respondents even if ultimately they
are found to be baseless. But the effectiveness of Title IX is better
advanced if the requirements for making a complaint are not overly
technical or difficult, and if before any disciplinary action is taken,
a recipient has the obligation to investigate the conduct alleged. The
Department has learned from decades of enforcing Title IX that persons
who experience sex discrimination often do not bring complaints for
many reasons, including the difficulty of making a complaint. These
final regulations help reduce this barrier for complainants, and the
Department has no reason to believe that people who make complaints--
orally or in writing--will do so hastily. Therefore, the Department
declines to require that all complaints of sex discrimination be made
in writing.
In addition, the Department acknowledges that Section 101 of OCR's
Case Processing Manual (July 18, 2022) (Case Processing Manual),
https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf, specifies
that complaints filed with OCR must be in writing. However, there is a
distinction between an administrative complaint asking a Federal
regulatory agency to investigate allegations that a recipient failed to
comply with its obligations and a complaint made to a recipient to
fulfill its obligation in the first instance. A complaint to OCR starts
the administrative process of a Federal agency, with potentially
recipient-wide financial and operational consequences, as compared to
the process of addressing complaints involving individual students or
employees, which may require time-sensitive responses and which
recipients handle every day in a broad range of contexts, including but
not limited to Title IX. In addition, students and employees have an
ongoing institutional relationship with the recipient that they do not
have with OCR.
Changes: None.
Rights of Respondents
Comments: Some commenters opposed allowing oral complaints,
asserting that a written complaint is vital to ensuring a respondent's
rights and should be required to initiate the recipient's grievance
procedures and impose discipline that could take away a respondent's
right to pursue their education.
Other commenters similarly argued that a formal complaint is
essential to upholding respondents' due process rights. They asserted
that only written complaints provide the respondent with notice of the
particulars of the allegations against them as required under proposed
Sec. 106.45(c)(1), and they asserted that oral complaints are often
hard to decipher and leave a recipient unable to provide the respondent
with notice sufficient to respond to the allegations against them.
Discussion: The Department agrees that to ensure a fair resolution
of complaints, a recipient must provide a respondent with notice of the
allegations against them sufficient for them to respond, which is
required under these final regulations. However, the Department
maintains that requiring a formal, written complaint is not essential
to ensuring a respondent receives sufficient notice of the allegations.
Under final Sec. 106.45(c), whether a complaint is made orally or in
writing, the recipient is responsible upon initiation of its grievance
procedures for providing sufficient notice of the allegations to the
parties to allow them to respond to the allegations. And for complaints
of sex-based harassment involving student complainants or student
respondents at postsecondary institutions, written notice is required
by Sec. 106.46(c). As discussed throughout this preamble and in the
July 2022 NPRM, the requirements for grievance procedures under Sec.
106.45 establish the basic elements of a fair process. See, e.g., 87 FR
41461. They also comport with the requirements set out in Goss v.
Lopez, 419 U.S. 565, 579, 581 (1975). See 87 FR 41473 (explaining that
at a minimum, Goss requires a recipient to provide a student facing up
to a 10-day suspension with notice of the allegations against them and
an opportunity to present their account of what happened). For further
explanation of how the final regulations comply with due process and
fundamental fairness requirements, see the discussion of Due Process
Generally (Section II.C).
Changes: None.
Rights of Complainants
Comments: Some commenters opposed removal of a written complaint
requirement because they felt it could create confusion and ambiguity
about when to initiate grievance procedures, leading recipients to act
either prematurely or not promptly enough. Those concerned about
premature action asserted that requiring written complaints supports
complainant autonomy because it gives the complainant the power to
decide whether to proceed, and asserted that by contrast, under the
2020 amendments, there was little chance that an overzealous Title IX
Coordinator would mischaracterize a complainant's intent and respond
prematurely.
[[Page 33487]]
Commenters concerned about a recipient's delayed response said that
the proposed definition of complaint was overbroad and vague, and that
allowing oral complaints might create confusion for students, families,
Title IX Coordinators, and other staff about when to initiate the
grievance procedures. These commenters said that a written complaint
eliminates this confusion by creating a bright-line rule for initiating
an investigation.
Other commenters stated that a written complaint benefits the
complainant because it serves as direct evidence that a complaint was
made and helps the complainant hold a recipient accountable for
properly investigating and resolving allegations of sex discrimination.
Some commenters similarly pointed out that a recipient could choose not
to investigate an oral complaint or could deny that an oral complaint
was ever made, and the complainant would be unable to prove that a
complaint was made due to the lack of a written record. Some commenters
requested that the Department require all recipient employees to be
trained on how to document an oral report, to avoid disputes that may
arise as to whether the complainant really intended to initiate the
grievance procedures. Commenters indicated that a misunderstanding
might harm a complainant when a recipient notifies a respondent of a
complaint that the complainant never intended.
One commenter predicted that the proposed definition of
``complaint'' would require a complainant to watch what they say to the
Title IX Coordinator or any other recipient employee to ensure that
their request for advice or information is not perceived as a
complaint, which would compromise the Title IX Coordinator's intended
role as a trusted source to discuss allegations and supportive measures
before deciding to proceed under the grievance procedures.
Discussion: With respect to complainant autonomy, the Department
agrees with commenters that it is important for a recipient to initiate
the grievance procedures when requested by a complainant, and for a
recipient not to initiate the grievance procedures if a complainant is
not ready or does not want to initiate them, except in the limited
circumstances in which the Title IX Coordinator determines that the
conduct as alleged presents an imminent and serious threat to the
health or safety of a complainant or other person or prevents the
recipient from ensuring equal access based on sex to its education
program or activity under Sec. 106.44(f)(1)(v). However, the
Department does not think that the answer is to require complaints to
be made in writing, particularly given the benefits of the added
flexibility, which many commenters acknowledged will help streamline
the complaint process and better effectuate Title IX by facilitating a
recipient's awareness of, and appropriate response to, sex
discrimination in its education program or activity. In addition, as
the Department noted in the July 2022 NPRM, during the June 2021 Title
IX Public Hearing, as well as in meetings and listening sessions,
several stakeholders stated that the onerous signature and writing
requirements of the 2020 amendments discouraged individuals from making
complaints. 87 FR 41409. Even if the writing and signature requirements
of the 2020 amendments may have reduced the risk of premature or
delayed action on the part of a recipient, the cost was a cumbersome
process that created a barrier for potential complainants to
effectively assert their rights under Title IX. The Department's view,
informed by stakeholder input before the July 2022 NPRM and feedback
from commenters in response, is that additional flexibility is needed
for all complaints of sex discrimination to ensure that a recipient is
aware of, and can respond appropriately to, sex discrimination in its
education program or activity. The Department has carefully weighed the
costs and benefits of including both oral and written requests in the
definition of ``complaint,'' and has determined that the benefits of
including both options justify the costs.
The Department also maintains that the revised definition of
``complaint,'' which incorporates a ``reasonable person'' standard,
will help to mitigate commenters' concerns about the risk of
misunderstanding. As explained earlier, the Department has revised the
definition in the final regulations in response to commenter input and
to ensure clarity. Under the revised definition of ``complaint,''
whether oral or written, if the request can be objectively understood
as a request for the recipient to investigate and make a determination
about alleged sex discrimination under Title IX, then the recipient
must interpret it as a request to initiate the grievance procedures. In
addition, the Department notes that under Sec. 106.44(f)(1)(iii), upon
being notified of conduct that reasonably may constitute sex
discrimination under Title IX, the Title IX Coordinator must notify a
complainant, or the individual who reported the conduct if the
complainant is unknown, of the grievance procedures under Sec. 106.45,
and if applicable Sec. 106.46, and the informal resolution process
under Sec. 106.44(k) if available and appropriate. The Department
anticipates that during such conversations, once the Title IX
Coordinator has explained the grievance procedures, they will confirm
whether the individual reporting the alleged discrimination does in
fact want the recipient to conduct an investigation to make a
determination regarding their allegations. Whether the answer is in the
affirmative or the negative, nothing in the final regulations would
preclude the Title IX Coordinator from memorializing in writing the
outcome of that conversation to help avoid any possible confusion about
agreed upon next steps. And although these regulations do not require a
complaint to be in writing, nothing in these regulations prevents a
complainant from memorializing their oral complaint in writing or
confirming in writing that the recipient received their complaint.
Moreover, as described above, these final regulations at Sec. 106.8(f)
contain specific recordkeeping requirements for each complaint of sex
discrimination and each notification the Title IX Coordinator receives
regarding conduct that reasonably may constitute sex discrimination. In
addition, the required procedural protections of the grievance
procedures and the recordkeeping obligations in Sec. 106.8(f) will
help to ensure that a recipient has sufficient information to initiate
the grievance procedures.
Regarding training for recipient employees on keeping track of oral
allegations, the Department declines to specify any more than what is
required by the final regulations at Sec. 106.8(d). Section
106.8(d)(4) requires that the Title IX Coordinator and any designees be
trained on a number of specific topics and receive any other training
necessary to coordinate the recipient's compliance with Title IX. The
latter is a matter for each recipient's discretion. Section 106.8(d)
strikes the appropriate balance between requiring training on topics
the Department considers necessary to promote a recipient's compliance
with these final regulations, while leaving flexibility for a recipient
to choose the content and substance of any additional training its
employees may need.
The Department does not share the commenter's concern that allowing
oral complaints will compromise a Title IX Coordinator's ability to
discuss allegations and supportive measures. The Title IX Coordinator
is responsible for coordinating the recipient's
[[Page 33488]]
compliance with its Title IX obligations, including by providing
information to a complainant about the grievance procedures, and
offering and coordinating supportive measures. The Title IX
Coordinator's role is not to serve as a confidential advisor to the
complainant or any other party. It is appropriate for a potential
complainant to carefully explain to a Title IX Coordinator what they
are alleging, and for the Title IX Coordinator to carefully confirm
both what is being alleged and whether the complainant intends to
initiate the grievance procedures.
With respect to other recipient employees, the Department notes
that the final regulations require employees who are not confidential
employees to notify the Title IX Coordinator of any information they
have about conduct that reasonably may constitute sex discrimination
under Title IX, or, as applicable, to provide a potential complainant
with contact information for the Title IX Coordinator and information
about how to report sex discrimination under Title IX. See Sec.
106.44(c). Therefore, a potential complainant who wants confidential
support has the discretion to seek out a confidential employee, if
provided by the recipient. Even if the information a potential
complainant provides to a non-confidential employee is reported to the
Title IX Coordinator, it will only prompt a complaint without the
complainant's permission if the Title IX Coordinator determines, after
considering at a minimum the factors in Sec. 106.44(f)(1)(v), that the
conduct as alleged presents an imminent and serious threat to the
health or safety of the potential complainant or other person or
prevents the recipient from ensuring equal access based on sex to its
education program or activity. The question of whether a conversation
with a recipient employee who is not the Title IX Coordinator will
constitute a ``request to the recipient'' is addressed in the
discussions of Sec. 106.44(a) and (c).
Changes: As noted earlier in this section, the final regulations at
Sec. 106.2 define ``complaint'' as an oral or written request to the
recipient that objectively can be understood as a request to
investigate and make a determination about alleged discrimination under
Title IX and this part.
Effect on Recipients
Comments: Some commenters suggested that the proposed regulations
should require neither ``oral'' nor ``written'' complaints and instead
should give a recipient discretion as to the format of complaints it
will accept under its own policies, which may include written
confirmation from the complainant that they intend to proceed with
grievance procedures. One commenter said that it was unclear whether
the proposed regulations would require a recipient to accept an oral
complaint or whether a recipient can require a written complaint.
Some commenters asserted that the investigation of ``informal''
complaints is expensive and takes time away from classroom instruction,
and that, for example, these costs outweigh the value of giving women
equal education opportunity. One commenter asserted that the proposed
definition would unreasonably increase the number of complaints and
impede the ability of a recipient to address allegations expeditiously.
A group of commenters posited that the proposed definition of
``complaint'' could increase litigation risks for recipients. For
example, they said if a complainant talks to a professor about
misconduct they experienced and the professor fails to notify the Title
IX Coordinator or document that the conversation occurred, and the
complainant says they made a complaint but the respondent says there is
no evidence of a complaint, the recipient could face legal challenges
from both parties. Some commenters explained that complaints should
have to be written and signed as protection for the recipient, saying,
for example, that a formal signed complaint requirement can provide
cover to a recipient when a complainant did not clearly request
initiation of the grievance procedures and later alleged that their
oral report should have been treated as a complaint.
One commenter asked the Department to confirm that under Sec.
106.47, OCR will not deem a recipient to have violated Title IX solely
because it would have reached a different determination under Sec.
106.45, including the recipient's determination whether allegations
constitute a ``complaint'' under Sec. 106.2.
One commenter asserted that it is unclear what would trigger the
initiation of the grievance procedures and that a recipient may have
thousands of employees and a decentralized organizational structure,
such that they encourage or authorize employees to respond partially or
fully to perceived sex discrimination in the moment. The commenter
recommended that the Department take a practical approach regarding
what constitutes a complaint to preserve flexibility and allow
significant discretion.
Discussion: The Department appreciates the variety of perspectives
shared by commenters and has carefully considered the possible effects
on recipients of allowing complaints to be made orally or in writing.
The Department does not think it is appropriate to grant recipients the
discretion to deny a complaint because it was not submitted in writing.
The goal of the revised definition of ``complaint'' is to provide added
flexibility to the complaint process for complainants, a revision the
Department adopted in response to concerns from stakeholders and
commenters that the formal complaint requirements of the 2020
amendments were overly prescriptive, including the requirement that a
complaint be in the form of a signed document, allowed recipients to
disregard complaints based on technicalities, and discouraged
complaints, contrary to the purpose and intent of Title IX.
In addition, the Department does not agree with the contention that
the costs of investigating ``informal'' complaints outweigh the
benefits of the final regulations, including the value of providing
equal educational opportunities for all individuals based on sex, or
with the assertion that removing the formal complaint requirement will
lead to an unreasonable increase in the number of complaints and a
delay in addressing the allegations expeditiously. Under Title IX, a
recipient is obligated to evaluate conduct that reasonably may
constitute discrimination on the basis of sex and ensure redress if it
occurs because Congress required the provision of equal opportunity to
anyone who wants to participate in a federally funded education program
or activity. While it is likely that the overall number of sex
discrimination complaints will increase somewhat once complaints no
longer have to be in writing and signed, any increased burden will not
be unreasonable for a number of reasons.
First, encouraging reporting and facilitating complaints of sex
discrimination is a critical part of a recipient's duty to effectuate
Title IX's nondiscrimination mandate. As a condition of receiving
Federal funds, a recipient agrees to operate its education program or
activity free from sex discrimination; doing so requires knowing about
possible discrimination and investigating it to determine the need for
remedy, if any. Second, a recipient already has an obligation to
address sex discrimination in its education program or activity, even
without a formal complaint, see Sec. 106.31, and under the 2020
amendments a recipient with actual knowledge of possible sexual
[[Page 33489]]
harassment (which can come from oral reports) is required to offer
supportive measures to a complainant, with or without a formal
complaint, see 34 CFR 106.44(a). Third, even if there are more
complaints overall, increased flexibility in the grievance procedures
provided by Sec. 106.45, and if applicable Sec. 106.46, will help
ensure that burdens on recipients are not unreasonable. For more
information regarding the changes to the grievance procedures
requirements, see the discussion of Framework for Grievance Procedures
for Complaints of Sex Discrimination (Section II.C) and discussion of
the Grievance Procedures for the Prompt and Equitable Resolution of
Complaints of Sex Discrimination (Section II.D). Fourth, allowing some
flexibility regarding how to make a complaint does not mean that people
who have not experienced sex-based harassment or other sex
discrimination will make complaints; rather, it means that those who
believe they have experienced sex-based discrimination have an
additional option to report it. The Department is not aware of evidence
to suggest that oral complaints are more likely to be unmeritorious or
even frivolous. If everyone who experienced sex discrimination did make
a complaint, that would likely make it easier for recipients to redress
that discrimination and prevent its recurrence. After careful
consideration, the Department has decided that the benefit of improving
flexibility regarding how individuals may make a complaint justifies
the possibility that the number of complaints may increase. A more
detailed discussion and analysis of the costs and benefits of these
final regulations is included in the Regulatory Impact Analysis.
The Department acknowledges recipients' concerns that oral
complaints will lead to increased litigation, but these concerns are
speculative and the risk of increased litigation, if any, is justified
because, as explained in greater detail above, mandating that
complaints be made in writing discourages individuals from making
complaints, in contravention of the purpose of Title IX to eliminate
all discrimination on the basis of sex in any education program or
activity receiving Federal financial assistance. 20 U.S.C. 1681(a); 34
CFR 106.1. While it might be helpful for employees other than the Title
IX Coordinator, such as professors, to keep careful notes or commit
oral allegations to writing, the Department declines to require that
they do so or to mandate that all employees receive specific training
on recordkeeping as explained more fully in the discussion of Sec.
106.8(d). These final regulations at Sec. 106.8(f) already contain
specific recordkeeping requirements for each complaint of sex
discrimination and each notification the Title IX Coordinator receives
of information about conduct that reasonably may constitute sex
discrimination.
The Department wishes to clarify that Sec. 106.47 applies only to
determinations regarding whether sex-based harassment occurred under
Sec. 106.45, and if applicable Sec. 106.46. It provides that the
Assistant Secretary will not deem a recipient to have violated the
regulations solely because the Assistant Secretary would have made a
different determination than the recipient did under Sec. 106.45, and
if applicable Sec. 106.46, based on an independent weighing of the
evidence in a particular complaint alleging sex-based harassment. The
Department maintains the position taken in the 2020 amendments that the
intent of Sec. 106.47 (then numbered Sec. 106.44(b)(2)) is to convey
that OCR will not substitute its judgment for the judgment of the
recipient's decisionmaker regarding the weighing of relevant and not
otherwise impermissible evidence in a particular case. See 85 FR 30221.
However, nothing in Sec. 106.47 prevents OCR from holding a recipient
accountable for noncompliance with any provision of the final
regulations, including its determination whether a complainant's
communication with the recipient constitutes a complaint under the
definition in Sec. 106.2.
Finally, a recipient would only be required to initiate grievance
procedures consistent with Sec. 106.45 when a written or oral report
meets the standards for a ``complaint'' in Sec. 106.2. Thus, while the
Department understands commenters' concern that Sec. 106.45 might
impede the ability of employees to address conduct in a timely manner
or exercise judgment, the Department has determined that the structure
of the grievance procedures under the final regulations provides a
workable framework that addresses those concerns and allows a recipient
to develop and implement a process for prompt and equitable response.
Changes: None.
4. Section 106.2 Definition of ``Disciplinary Sanctions''
Comments: Several commenters suggested modifications to the
definition of ``disciplinary sanctions.'' One commenter asked the
Department to modify the definition to clarify that it is not intended
to prevent a recipient from considering a respondent's cumulative
conduct history when imposing sanctions. Another commenter requested
that the Department remove the term ``disciplinary'' and use only
``sanctions'' because ``disciplinary sanctions'' suggests sanctions are
limited to students and employees and may be misunderstood to exclude
third parties. One commenter requested that the Department clarify
whether there are specific requirements for disciplinary sanctions that
apply to elementary schools and secondary schools.
Discussion: The Department appreciates commenters' suggestions
regarding modifications to the definition of ``disciplinary
sanctions.'' The definition of ``disciplinary sanctions'' clarifies
that a disciplinary sanction is a consequence imposed on a respondent
only after a determination that the respondent has violated the
recipient's prohibition on sex discrimination. It does not specify what
consequences a recipient can or must impose on a respondent or what
factors to consider when determining what disciplinary sanction to
impose. As the Department explained in the 2020 amendments, the
Department has determined that administrative enforcement of Title IX
does not require overriding a recipient's discretion to make decisions
regarding disciplinary sanctions or prescribing how a recipient should
determine a disciplinary sanction. See 85 FR 30274. The definition of
``disciplinary sanctions'' focuses on ensuring that respondents are not
disciplined for engaging in sex discrimination unless a fair process
has determined responsibility, while respecting a recipient's
discretion to make disciplinary decisions under their own policies and
codes of conduct. For these reasons, the Department declines to modify
the definition of ``disciplinary sanctions'' to state that it is not
intended to prevent a recipient from considering a respondent's
cumulative conduct history when imposing sanctions.
The Department also declines to remove the term ``disciplinary''
from ``disciplinary sanctions.'' The regulations use ``disciplinary
sanctions'' because of the disciplinary nature of the action taken by
the recipient, and the Department has determined that this phrase is
more specific and accurate than the word ``sanctions.'' The definition
of ``respondent'' in these final regulations, and the related
discussion of the definition of ``respondent'' in the July 2022 NPRM,
make clear that any person, including third parties, may be considered
a respondent subject to disciplinary sanctions. 87 FR 41420. For more
information, see the discussion in the preamble to the 2020 amendments,
85 FR 30488. A recent Federal appellate
[[Page 33490]]
decision in Hall v. Millersville University supports the Department's
position that a ``respondent'' may include a third party. 22 F.4th 397,
405-06 (3d Cir. 2022) (finding that the university could be liable
under Title IX for its deliberate indifference to a non-student's
conduct).
Finally, the Department's definition of ``disciplinary sanctions''
applies to all recipients, including elementary schools and secondary
schools, and does not set forth specific requirements for disciplinary
sanctions at any level. The process for imposing disciplinary
sanctions--for all recipients--is set forth in more detail in Sec.
106.45(h). The Department appreciates the opportunity to clarify that
``disciplinary sanctions'' refers to consequences imposed on a
respondent following a determination under Title IX that the respondent
violated the recipient's prohibition on sex discrimination. Nothing in
these regulations addresses conduct that does not reasonably constitute
sex discrimination. For this reason, the Department has added ``under
Title IX'' to the definition of ``disciplinary sanctions'' in the final
regulations. These regulations also do not preclude routine classroom
management or the application of separate codes of conduct, including
to conduct that has been determined through grievance procedures not to
be sex discrimination or to conduct that would be prohibited regardless
of whether sex discrimination occurred. See, e.g., 85 FR 30182.
Changes: The Department has added ``under Title IX'' to the
definition of ``disciplinary sanctions.''
5. Section 106.2 Definitions of ``Elementary School'' and ``Secondary
School''
Comments: Commenters generally supported the proposed definitions
of ``elementary school'' and ``secondary school'' and said the
definitions would clarify Title IX's coverage and aid in consistent and
effective enforcement of Title IX.
Discussion: The Department acknowledges commenters' support for the
proposed definitions of ``elementary school'' and ``secondary school.''
Changes: None.
6. Section 106.2 Definition of ``Postsecondary Institution''
Comments: Some commenters generally supported the proposed
definition of ``postsecondary institution'' and said it would aid in
consistent and effective enforcement of Title IX.
Other commenters, without specifying how or providing additional
details, stated that they believed the proposed definition contained
unnecessary details and was an attempt to micromanage and create an
extrajudicial system.
One commenter asked the Department to clarify whether the term
``postsecondary institution'' means that the proposed regulations do
not apply to elementary schools and secondary schools.
Discussion: The Department acknowledges commenters' support for the
definition of ``postsecondary institution.''
The Department disagrees with the commenters' view that the
definition is too detailed. The Department's revisions help streamline
and simplify the definition. As explained in the July 2022 NPRM, the
Department proposed to remove the specific references to Sec. Sec.
106.44 and 106.45 from the definition of ``postsecondary institution''
because the definition applies to all of part 106. See 87 FR 41400. As
explained, the Department also made necessary revisions to clarify that
the definition includes an institution of vocational education that
serves postsecondary students because an institution of vocational
education could serve either secondary school students or postsecondary
students. See id.
The commenters did not specify how the definition of
``postsecondary institution'' would micromanage or create an
extrajudicial system, but in any event, the definition is limited to
explaining what constitutes a postsecondary institution and is intended
to provide clarity for recipients. The Department also cannot conceive
how these definitions would micromanage or create an extrajudicial
system.
Finally, the Department clarifies that the final regulations apply
to all recipients of Federal financial assistance, including elementary
schools and secondary schools. Because there are certain provisions of
the final regulations that explicitly only apply to postsecondary
institutions (e.g., Sec. 106.46), however, the Department maintains
the definition of ``postsecondary institution'' provides necessary
clarification for recipients.
Changes: None.
7. Section 106.2 Definition of Prohibited ``Sex-Based Harassment''
General Support and Opposition
Comments: Commenters provided a variety of reasons for supporting
the proposed definition of ``sex-based harassment,'' including that it
aligns with congressional intent and ensures that Federal funds are not
used to support discrimination; it encourages students to report sex-
based harassment; and it is consistent with the Department's
longstanding enforcement practice. These commenters also stated that
the 2020 amendments narrowed the definition of ``sexual harassment,''
making it more difficult for potential complainants to assert their
rights.
One commenter asserted that the Department's rulemaking authority
does not extend to the proposed definition of ``sex-based harassment,''
claiming that Gebser grants the Department the authority to issue only
``prophylactic rules,'' not to define discrimination.
Some commenters asserted the Department failed to justify the need
to revise the definition, having previously stated that it wanted to
provide recipients with consistency and simplicity in the definition of
``sexual harassment'' under Title IX.
Another commenter asked the Department to clarify that sex
discrimination refers to any discrimination based on sex, whereas sex-
based harassment is a subset of sex discrimination. Some commenters
asked how the definition of ``sex-based harassment'' would apply in
specific situations, such as to elementary school students, who often
do not have the maturity or comprehension to understand what the term
means, and to postsecondary institution employers in a State where
there are specific requirements for workplace harassment.
Discussion: As explained further below, the Department is adopting
a final definition that modifies the proposed definition in certain
respects but retains the core elements of the proposed definition. The
Department maintains that the final definition of ``sex-based
harassment'' better fulfills Title IX's prohibition on sex
discrimination in education programs or activities that receive Federal
financial assistance, is consistent with relevant judicial precedent,
accounts for the legitimate interests of recipients and parties, and
aligns with congressional intent and the Department's longstanding
interpretation of Title IX and resulting enforcement practice prior to
the 2020 amendments.
The Department agrees with the commenter that Gebser is relevant
for considering the distinctions between administrative enforcement and
civil damages actions, but disagrees with the commenter's
characterization of Gebser as precluding the Department from including
a definition of ``sex-based harassment'' in regulations implementing
Title IX. The definition of ``sex-based harassment'' establishes
standards the Department and recipients
[[Page 33491]]
use to implement and enforce Title IX effectively, which, as explained
in the discussions of Sec. Sec. 106.44 and 106.45(a)(1), the
Department is statutorily authorized and directed to accomplish.
Contrary to the commenter's characterization, the Gebser Court
wrote: ``Agencies generally have authority to promulgate and enforce
requirements that effectuate the statute's nondiscrimination mandate,
20 U.S.C. 1682, even if those requirements do not purport to represent
a definition of discrimination under the statute.'' 524 U.S. at 292.
Nothing in this statement precludes the Department from setting out a
definition of ``sex-based harassment'' in the exercise of this
statutory authority. We observe, moreover, that a definition of
``sexual harassment'' has been part of the Title IX regulations since
2020. The Department did not propose in the July 2022 NPRM, nor does
the Department undertake now, to regulate conduct that does not
constitute sex discrimination. The final regulations simply define
``sex-based harassment,'' which is a form of sex discrimination. The
commenter's view would appear to disallow the definition of ``sex-based
harassment'' in the final regulations or any other definition.
Consistent with Title IX's text and the Department's authority to
implement the statute, as well as OCR's enforcement experience and case
law interpreting the statute, the Department is providing greater
clarity for recipients about steps they must take to ensure that no
person is subjected to sex discrimination in their education programs
and activities. Providing a clear definition of ``sex-based
harassment'' in the final regulations will help recipients better
identify discriminatory conduct when it occurs, and will help them
better understand their obligations to address sex discrimination under
the statute.
The Department has adequately justified the need for a revised
definition. As explained in the July 2022 NPRM, the Department
identified the need for a new definition of ``sex-based harassment''
based on an extensive review of the 2020 amendments, in addition to
live and written comments received during the June 2021 Title IX Public
Hearing, numerous listening sessions and meetings with stakeholders
conducted by the Office for Civil Rights in 2021 and 2022, and the 2022
meetings held under Executive Order 12866. See 87 FR 41390, 41392. The
Department heard significant feedback from students, parents,
recipients, advocates, and other concerned stakeholders that the 2020
amendments do not adequately clarify or specify the scope of sex
discrimination prohibited by Title IX, and that the current definition
of ``sexual harassment'' does not fully implement Title IX's mandate.
See 87 FR 41392, 41396. The updated definition in the final regulations
is intended to address those identified and well-documented gaps.
The Department clarifies that sex discrimination refers to any
discrimination based on sex, including, but not limited to, sex-based
harassment, and has modified the proposed definition of ``sex-based
harassment'' to clearly state that sex-based harassment is a form of
sex discrimination.
With respect to the comments regarding specific applications of the
definition of ``sex-based harassment'' in elementary school settings or
in specific States, the Department notes that the definition of ``sex-
based harassment'' in the final regulations applies to all recipients
and that, as stated in Sec. 106.6(b), the obligation to comply with
Title IX is not obviated or alleviated by any State or local law or
other requirement that conflicts with Title IX or this part. That said,
the Department maintains that State workplace harassment laws can
generally be applied in ways that do not create conflicts. The
Department also notes that Title IX's prohibition on sex discrimination
applies to all recipients and in all States. The final regulations take
into account differences in the age and maturity of students in various
educational settings, allowing recipients to adapt the regulations as
appropriate to fulfill their Title IX obligations. The Department will
take into account these types of differences and recipient flexibility
on a case-by-case basis when addressing any complaints and applying the
definition of ``sex-based harassment.''
Changes: The Department has revised the definition of ``sex-based
harassment'' to state explicitly that sex-based harassment is a form of
sex discrimination.
Data Related to Sex-Based Harassment
Comments: Some commenters referred the Department to data and other
information showing the prevalence of sex-based harassment in
postsecondary institutions and elementary schools and secondary
schools. For example, some commenters referenced data that they said
showed the prevalence of sex-based harassment among specific
populations, including Asian American and Native Hawaiian/Pacific
Islander women; LGBTQI+ students; Black women and girls; and students
with disabilities. One commenter noted that individuals may experience
multiple overlapping forms of discrimination, including sex-based
harassment. Some commenters referred the Department to data and other
information that they said showed sex-based harassment is underreported
and why. Some commenters referred the Department to data and other
information that they said showed the negative impact that sex-based
harassment has on education, including causing survivors to drop out of
school, miss class and extracurricular activities, suffer increased
absences, experience decreases in GPA, lose scholarships or financial
aid, have lower self-esteem, and suffer higher levels of depression and
suicidality.
Discussion: The Department acknowledges the data and information
referred to by commenters with regard to the prevalence of sex-based
harassment of students and employees in postsecondary institutions and
in elementary schools and secondary schools. The final regulations hold
a recipient accountable for responding to sex-based harassment,
including quid pro quo harassment, hostile environment harassment,
sexual assault, dating violence, domestic violence, and stalking,
consistent with Title IX's broad prohibition on sex discrimination.
Further, the Department acknowledges the data and information
referred to by commenters regarding the impact of sex-based harassment
on specific populations in significant numbers. The final regulations
hold recipients accountable for responding to sex-based harassment for
all populations consistent with Title IX's broad prohibition on sex
discrimination. The Department agrees with commenters' observation that
individuals may experience multiple and overlapping forms of
discrimination. Congress has chosen to address different forms of
discrimination through different statutes, and these final regulations
implement only Title IX's prohibition on discrimination on the basis of
sex. In addition to their obligations under Title IX, recipients have
an obligation not to discriminate on numerous other grounds under the
civil rights laws enforced by OCR,\4\ as well as under Federal civil
rights laws enforced by the U.S. Department of Justice and other
[[Page 33492]]
Federal agencies. The Department believes that an improved response to
incidents of sex-based harassment benefits individuals whose experience
of sex-based harassment overlaps with other forms of discrimination.
---------------------------------------------------------------------------
\4\ For example, in addition to Title IX, OCR also enforces
Title VI, Section 504, Title II of the ADA, the Age Discrimination
Act of 1975, and the Boy Scouts of America Equal Access Act.
---------------------------------------------------------------------------
The Department shares the commenters' concerns that sex-based
harassment is underreported. Title IX requires a recipient to operate
its education program or activity in a manner that is free from sex
discrimination, and, for the reasons described elsewhere in this
preamble, the definition of ``sex-based harassment'' in the final
regulations, among other changes, will remove certain barriers to
reporting. Because sex-based harassment causes serious harm to those
impacted, as several commenters discussed, the final regulations
clarify that a recipient must respond to all forms of harassment on the
basis of sex in a manner consistent with Title IX's broad prohibition
on sex discrimination in education programs or activities that receive
Federal financial assistance. See, e.g., Sec. Sec. 106.2 (definition
of ``sex-based harassment''), 106.44 (required response to sex
discrimination), 106.45 (grievance procedures for the prompt and
equitable resolution of sex discrimination).
Changes: None.
Sex-Based Harassment--Burden and Cost (Sec. 106.2)
Comments: Some commenters were concerned that the proposed
definition of hostile environment sex-based harassment, as compared to
the 2020 amendments, would require a recipient to address more
complaints through its Title IX grievance procedures and lead to more
lawsuits, which would impose a greater burden and more expenses on a
recipient and take time and resources away from more serious claims.
One of these commenters also noted that, especially at smaller
postsecondary institutions, this would detract from efforts to address
sexual assault and quid pro quo harassment, which the commenter felt
should be the priority under Title IX. One commenter expressed concern
about the impact the definition of ``sex-based harassment'' would have
on Title IX Coordinators, which together with other provisions in the
proposed regulations, the commenter asserted, would require Title IX
Coordinators to monitor and police potentially offensive conduct,
including speech.
Discussion: In the July 2022 NPRM, the Department acknowledged that
recipients would be required to address more complaints under these
final regulations and projected a 10 percent increase in complaint
investigations compared to the number conducted under the 2020
amendments. 87 FR 41550. As explained in the Regulatory Impact
Analysis, commenters did not provide data necessitating a change to the
Department's 10 percent estimate. The Department maintains that the
definition of ``sex-based harassment'' will more fully implement
Congress's nondiscrimination requirement in Title IX. The Department
considered several alternatives to the final definition of ``sex-based
harassment,'' including maintaining the definition of ``sexual
harassment'' from the 2020 amendments and different wording options for
the definition of hostile environment sex-based harassment, but
concluded that none captured the benefits of this final definition and
state of the law. The Department also considers and explains the impact
of the final regulations on small entities, including small recipients,
in the discussion of the Regulatory Flexibility Act. There the
Department acknowledges commenters' concerns that the final
regulations, including the definition of ``sex-based harassment,''
likely will increase the number of Title IX cases and investigations
that small entities will be required to address. Similar to the
projection in the Regulatory Impact Analysis, the Department projects a
10 percent increase in complaints for small entities. The Department
disagrees with commenters who forecast a significantly greater increase
and the commenters provided no data in support of their assertion.
The Department also disagrees with the commenters' assertion that
several provisions in the final regulations, including the definition
of ``sex-based harassment,'' would mean that Title IX Coordinators must
monitor and limit any conduct in the form of speech that could be
considered potentially offensive--even if that speech is
constitutionally protected. The Title IX Coordinator requirements in
Sec. 106.44(f) do not impose an obligation on a recipient's Title IX
Coordinator to respond to any conduct or speech other than that which
reasonably may constitute sex discrimination. Further, as discussed
elsewhere in this preamble, the final regulations do not alter Sec.
106.6(d), which states that nothing in the Title IX regulations
requires a recipient to restrict any rights that would otherwise be
protected from government action by the U.S. Constitution, including
the First Amendment. We also underscore that none of the amendments to
the regulations changes or is intended to change the commitment of the
Department, through these regulations and OCR's administrative
enforcement, to fulfill the Department's obligations in a manner that
is fully consistent with the First Amendment and other guarantees of
the U.S. Constitution. For additional discussion of the First
Amendment, see the Hostile Environment Sex-Based Harassment--First
Amendment Considerations section below.
For all recipients, to the extent the Department's projected 10
percent increase in complaints and related increase in use of a
recipient's grievance procedures results from the change in the
definition of ``sex-based harassment,'' the Department determined that
the related costs from such an increase are justified by the benefits
of ensuring effective implementation of a recipient's statutory
obligation that its education program or activity be free from sex
discrimination. The Department also notes that other changes in the
regulations, such as affording recipients the discretion to use a
single-investigator model and removing the requirement to hold a live
hearing in all cases, see, e.g., Sec. Sec. 106.45(b)(2) and
106.46(f)(1), provide recipients, including small entities, with
greater flexibility in conducting their grievance procedures, as some
commenters have also recognized. The Department's view, therefore, is
that evaluating the final regulations' changes as a whole is important
for accurately assessing the extent to which, if at all, the final
regulations will increase costs or burdens for recipients.
Finally, the Department disagrees with commenters' assertions that
the increase in complaints of sex-based harassment will detract from
recipients' efforts to address sexual assault and quid pro quo
harassment, which some commenters stated should be prioritized under
Title IX. The Department believes that the additional flexibility for
recipients provided in the final regulations, including with respect to
the grievance procedure requirements, will allow recipients to address
all types of conduct covered under the definition of ``sex-based
harassment.''
Changes: None.
Sex-Based Harassment--Introductory Text and Scope (Sec. 106.2)
Comments: Some commenters supported the proposed definition of
``sex-based harassment'' because its coverage of harassment based on
sex stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity would
[[Page 33493]]
better align with State laws and recipient codes of conduct and
eliminate confusion. Commenters stated that such harassment is no less
harmful than other forms of sex-based harassment.
Some commenters suggested the Department remove the reference to
Sec. 106.10 in the introductory text to the definition of ``sex-based
harassment'' and instead specify all of the bases identified in Sec.
106.10 to avoid confusion. One commenter asked the Department to
clarify whether the three categories of harassment (i.e., quid pro quo,
hostile environment, and specific offenses) were intended to modify
only ``other conduct on the basis of sex'' or instead to modify
``sexual harassment, harassment on the bases described in Sec. 106.10,
and other conduct on the basis of sex.'' One commenter suggested that
the Department remove the reference to ``sexual harassment'' in the
introductory sentence of the proposed definition of ``sex-based
harassment'' or clarify what additional forms of sexual harassment
would not be covered by the three categories in the proposed
definition. Another commenter asked what the term ``harassment'' means
and whether it includes nonverbal, verbal, or written actions.
One commenter expressed concern that the proposed definition of
``sex-based harassment'' would cover speech or conduct that was not
based on sex and asserted that if harassment does not occur because of
a person's sex, it is not sex-based harassment under Title IX,
regardless of how offensive it is.
Several commenters posed specific examples of conduct and asked
whether they would constitute sex-based harassment under the proposed
definition.
Discussion: The Department appreciates the range of opinions
expressed regarding the introductory text and scope of sex-based
harassment. The Department believes that these final regulations best
comport with the text of Title IX, the case law interpreting Title IX,
and Title IX's nondiscrimination mandate.
The Department agrees with the commenter who asserted that conduct
that falls within the definition of ``sex-based harassment'' must be
based on sex. Adhering to the statutory language, the definition
clearly states that the conduct prohibited must be ``on the basis of
sex,'' and includes sexual harassment and harassment on the bases
described in Sec. 106.10. As recognized in the preamble to the 2020
amendments, ``on the basis of sex'' does not require that the conduct
be sexual in nature. See 85 FR 30146. The Department appreciates
commenters' suggestions but declines to remove the reference to Sec.
106.10 in the definition of ``sex-based harassment,'' as the reference
refers clearly to the scope of discrimination on the basis of sex and
thus is not likely to cause confusion.
As discussed in the July 2022 NPRM, Title IX's broad prohibition on
sex discrimination encompasses, at a minimum, discrimination against an
individual based on sex stereotypes, sex characteristics, pregnancy or
related conditions, sexual orientation, and gender identity. See 87 FR
41531-32. All of these classifications depend, at least in part, on
consideration of a person's sex. See id. The final regulations clarify
the scope of harassment covered and add language to the regulatory text
that was in the preamble to the 2020 amendments.
In response to comments about ``other conduct on the basis of
sex,'' some language regarding other harassment is necessary to
maintain consistency with Sec. 106.10, which--by using the word
``includes''--indicates that there could be other kinds of sex
discrimination besides the specific bases listed. To alleviate
confusion, the Department has changed ``other conduct on the basis of
sex'' to ``other harassment on the basis of sex'' and moved the
language earlier in the introductory sentence to tie it more directly
to Sec. 106.10. The Department clarifies that the three categories of
harassment in Sec. 106.2 of the final regulations modify ``sexual
harassment and other harassment on the basis of sex, including on the
bases described in Sec. 106.10,'' such that to constitute prohibited
sex-based harassment, the sexual harassment or harassment on the bases
described in Sec. 106.10 must satisfy one or more of the three
categories (i.e., quid pro quo, hostile environment, or specific
offenses). The Department's position is that it is not necessary to
further define the term harassment because the definition of ``sex-
based harassment,'' including the three categories of harassment, is
sufficiently clear. The Department confirms that, as discussed in the
July 2022 NPRM, acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex are within the purview of Title
IX and may constitute sex-based harassment provided they meet the
requirements of the definition. See 87 FR 41411, 41533. The Department
has held this view for more than two decades. See 85 FR 30034-36,
30179; U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students,
or Third Parties, 62 FR 12034, 12038-39 (Mar. 13, 1997) (revised in
2001) (1997 Sexual Harassment Guidance), https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. The Department also notes that as
discussed in the section below on Hostile Environment Sex-Based
Harassment--Online Harassment (Sec. 106.2), this covered conduct could
occur online, in addition to in person.
The Department declines to remove the reference to ``sexual
harassment'' in the introductory sentence because it is useful to
explicitly state in the definition of ``sex-based harassment'' that it
includes not only (1) sexual harassment, which is conduct of a sexual
nature, but also (2) other forms of harassment that are not or may not
be ``sexual'' but that are nonetheless based on sex, such as harassment
based on pregnancy, gender identity, or sex stereotypes. The term
``sexual harassment'' as used in the definition refers to conduct that
constitutes quid pro quo harassment, hostile environment harassment, or
a specific offense listed in the definition of ``sex-based
harassment.'' As explained in prior OCR guidance, sexual harassment can
include unwelcome sexual advances, requests for sexual favors, and
other verbal, nonverbal, or physical conduct of a sexual nature. See,
e.g., 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, noticed at 66 FR 5512 (Jan. 19, 2001)
(rescinded upon effective date of 2020 amendments, Aug. 14, 2020) (2001
Revised Sexual Harassment Guidance), https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. Other forms of harassment that are not or
may not be ``sexual'' can also constitute hostile environment
harassment. With respect to the hypothetical sex-based harassment
scenarios presented by commenters, the Department declines to make
definitive statements about examples, due to the necessarily fact-
specific nature of the analysis. At the same time, we note that further
explanation of the content of the final regulations is provided in the
discussions below.
The Department disagrees that the definition of ``sex-based
harassment'' in the final regulations covers speech or conduct that is
not based on sex. To the extent the comments raise concerns under the
First Amendment, those comments are addressed in the section below
dedicated to Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2).
Changes: The Department has revised the definition of ``sex-based
[[Page 33494]]
harassment'' to state that sex-based harassment is a form of sex
discrimination. The Department has also changed ``other conduct on the
basis of sex'' to ``other harassment on the basis of sex'' and moved
the language to earlier in the introductory sentence. The introductory
language in the definition now states that sex-based harassment
prohibited by this part ``means sexual harassment and other harassment
on the basis of sex, including on the bases described in Sec.
106.10.''
Sex-Based Harassment--Vagueness and Overbreadth (Sec. 106.2)
Comments: Some commenters opposed the proposed definition of ``sex-
based harassment'' because they felt it would be too expansive and
overbroad or too vague, which they believed could lead to false
allegations. These commenters noted that the definition must clearly
define the scope of prohibited conduct.
Other commenters specifically expressed vagueness and overbreadth
concerns in the context of hostile environment sex-based harassment.
For example, some commenters were concerned that key terms were
undefined, which the commenters said would cause postsecondary
institutions to restrict protected speech. The commenters did not state
what key terms should be defined. Other commenters were concerned that
the totality of the circumstances analysis in hostile environment sex-
based harassment would make it difficult for students and employees to
know what conduct was covered and could lead to overly broad policies.
One commenter asserted that precise definitions are required in the
postsecondary education setting, even if they would not be required in
a workplace setting, because of academic freedom. Another commenter
argued that, although the July 2022 NPRM stated that 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, the preamble is vague
about where the Department would draw the line between speech protected
under the First Amendment and hostile environment sex-based harassment
under Title IX, and thus a recipient would be incentivized to treat
speech that is close to the line as a Title IX violation.
One commenter suggested that OCR's previously issued guidance on
Title IX and sexual harassment was too broad.\5\ Another commenter
asserted that some individuals may not know what conduct is prohibited
if they are only told that objectively and subjectively offensive
conduct is prohibited. Some commenters said the subjective standard's
vagueness would deny respondents due process and lead to meritless
investigations and inconsistent enforcement across recipients. Some
commenters said that the term ``limits'' is vague and overly broad.
---------------------------------------------------------------------------
\5\ The commenter cited, for example, U.S. Dep't of Educ.,
Office for Civil Rights, Sexual Harassment: It's Not Academic, at 3-
4 (2008), https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf.
---------------------------------------------------------------------------
Discussion: The Department disagrees that the definition of ``sex-
based harassment'' is too expansive and overbroad or too vague and does
not clearly define the scope of prohibited conduct. Title IX broadly
prohibits sex discrimination, and it is well-settled that harassment is
a form of discrimination. See, e.g., Davis v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 649-50 (1999) (citing Gebser, 524 U.S. at 281;
Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 74-75 (1992)).
While the definition differs from the standard courts apply to damages
claims in private litigation, for decades prior to the 2020 amendments
the Department applied a similar definition in administrative
enforcement efforts to give complete effect to Title IX. See, e.g.,
2001 Revised Sexual Harassment Guidance. The definition also closely
tracks longstanding case law defining sexual harassment, which courts
have had no difficulty interpreting. See, e.g., Harris v. Forklift
Sys., Inc., 510 U.S. 17 (1993). With respect to comments regarding the
purported vagueness of the definition and the lack of clearly defined
conduct, the Department notes that the Eighth Circuit recently
considered a ``void for vagueness'' challenge to a university sexual
harassment policy with a similar definition: the policy prohibited
conduct that ``create[d] a hostile environment by being sufficiently
severe or pervasive and objectively offensive that it interfere[d]
with, limit[ed] or denie[d] the ability of an individual to participate
in or benefit from educational programs or activities.'' Rowles v.
Curators of Univ. of Mo., 983 F.3d 345, 352 (8th Cir. 2020) (quoting
the policy). The Eighth Circuit rejected the plaintiff's vagueness
challenge, explaining that the policy ``provide[d] adequate notice of
what conduct is prohibited'' and used language with ``common usage and
understanding.'' Id. at 356, 358. The court specifically noted that
qualifiers such as ``objective''--similar to the requirement in the
final definition that conduct creating a hostile environment be
``objectively offensive,'' see Sec. 106.2--``provide adequate notice
in [the] context'' of university harassment policies. Rowles, 983 F.3d
at 356; see also Koeppel v. Romano, 252 F. Supp. 3d 1310, 1327 (M.D.
Fla. 2017) (``inclusion of the objective and subjective standard'' in
harassment policy made it sufficiently clear that ``a person of
ordinary intelligence [could understand] what conduct [was]
prohibited''), aff'd sub nom. Doe v. Valencia Coll., 903 F.3d 1220
(11th Cir. 2018); Vanderhurst v. Colo. Mountain Coll. Dist., 16 F.
Supp. 2d 1297, 1305-06 (D. Colo. 1998) (harassment policy's use of
terms like ``considered offensive by others'' and ``unwanted sexually
oriented conversation'' allowed ``ordinary people [to] understand what
conduct [was] prohibited''). The case law thus supports the
Department's view that the final definition is not inappropriately
vague and clearly defines the scope of prohibited conduct.
The Department similarly disagrees with commenters who asserted
that the proposed definition of hostile environment sex-based
harassment is overbroad or vague. The Department notes that commenters
did not specify which terms they wanted the Department to define but
did state that it was unclear how a recipient would draw the line
between speech protected under the First Amendment and sex-based
harassment, and how to analyze offensiveness. As explained in the
discussion below of Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2), the Department has carefully
defined hostile environment sex-based harassment with the First
Amendment in mind by requiring that it be unwelcome, sex-based, and
subjectively and objectively offensive, as well as so severe or
pervasive that the conduct results in a limitation or denial of a
person's ability to participate in or benefit from the recipient's
education program or activity. The definition is aimed at
discriminatory conduct--conduct that is unwelcome as well as sex-based,
and that has an impact far greater than being bothersome or merely
offensive. Moreover, even when a rule aimed at offensive conduct sweeps
in speech, the rule does not necessarily become vague or overbroad. For
example, as noted above in Rowles, the court rejected plaintiff's claim
that the
[[Page 33495]]
policy at issue, which targeted offensive conduct, was ``void for
vagueness'' as applied to his ``protected `amorous speech.' '' 983 F.3d
at 357-58. The court reached a similar conclusion with respect to
overbreadth. Although the policy at issue had been applied to the
plaintiff's speech, it did not target speech as such; rather it
``prohibit[ed] conduct'' that was ``defined and narrowed using language
with common usage and understanding.'' Id. at 358. The plaintiff thus
failed to establish that the policy had ``a real and substantial effect
on protected speech.'' Id.\6\ Rowles accordingly supports the
conclusion that policies that define hostile environment sex-based
harassment similar to the definition of hostile environment sex-based
harassment in these final regulations do not violate the First
Amendment merely because they may, in some circumstances, be applied to
speech.
---------------------------------------------------------------------------
\6\ The court reached this conclusion even though the policy was
broader than the standard for private actions for money damages for
student-to-student sexual harassment that the Supreme Court
articulated in Davis, 526 U.S. 629. See Rowles, 983 F.3d at 352
(policy covered ``severe or pervasive'' conduct that ``interfere[d]
with, limit[ed] or denie[d]'' ability to participate). Indeed,
despite this difference, the court cited Davis as support for the
proposition that the policy was sufficiently narrow to withstand
constitutional challenge. Id. at 358-59. The case thus supports the
Department's view--described in more detail below--that the
definition of sex-based harassment in the final regulations need not
match the standard for private damages actions articulated in Davis.
---------------------------------------------------------------------------
Other case law also supports this conclusion. For example, several
commenters cited DeJohn v. Temple University, 537 F.3d 301 (3d Cir.
2008), for the proposition that the definition of hostile environment
sex-based harassment in the proposed regulations would be too broad or
vague. And to be sure, the court in DeJohn did conclude that the
University's specific policy was overbroad. Id. at 320. Yet the court
also explained that, had the policy's application to conduct been
appropriately narrowed, it could have survived First Amendment
scrutiny. The court explained that ``[a]bsent any requirement akin to a
showing of severity or pervasiveness--that is, a requirement that the
conduct objectively and subjectively creates a hostile environment or
substantially interferes with an individual's work--the policy provides
no shelter for core protected speech.'' Id. at 317-18. Likewise,
``unless harassment is qualified with a standard akin to a severe or
pervasive requirement, a harassment policy may suppress core protected
speech.'' Id. at 320. The Department's definition of hostile
environment sex-based harassment adopts exactly the guardrails that
DeJohn suggested are necessary--it applies only to conduct that, among
other things, is ``objectively and subjectively'' offensive and is
``severe or pervasive.'' And indeed, courts applying DeJohn have
specifically concluded that the inclusion of such guardrails narrows a
harassment policy sufficiently to withstand overbreadth and vagueness
challenges. See Koeppel, 252 F. Supp. 3d at 1326 (``[The policy's]
limiting language is precisely the type of language that the Third
Circuit suggested would `provide shelter for core protected speech.'
Because Valencia's policy provides language that sufficiently shelters
protected speech, the Court finds that the policy is not
unconstitutionally overbroad.'' (citation omitted)); id. at 1327
(``Based on the inclusion of the objective and subjective standard, the
Court finds that Valencia's sexual harassment policy sufficiently
explains to a person of ordinary intelligence what conduct is
prohibited.''); Marshall v. Ohio Univ., No. 2:15-CV-775, 2015 WL
1179955, at *6 (S.D. Ohio Mar. 13, 2015) (distinguishing DeJohn and
rejecting vagueness and overbreadth challenges to a policy that
``require[d] an individual's actions to be objectively and subjectively
severe or pervasive so as to cause, or be intended to cause, an
intimidating, hostile, or offensive work, academic, or living
environment''). For additional discussion of the First Amendment, see
the section below on Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2).
With respect to false allegations, the Department takes this
concern seriously. Importantly, the final regulations incorporate
safeguards against false allegations. For example, the final
regulations require that a recipient evaluate complaints of sex-based
harassment based on all relevant not otherwise impermissible evidence,
see Sec. 106.45(b)(6) and (7), require a recipient to provide each
party with an equal opportunity to access the evidence that is relevant
to the allegations of sex discrimination and not otherwise
impermissible, or an accurate description of the evidence (and if the
recipient provides a description, the parties may request and then must
receive access to the underlying evidence), see Sec. 106.45(f)(4), and
require a recipient to provide a process to question parties and
witnesses to assess the party's or witness's credibility when
credibility is in dispute and relevant to evaluating one or more
allegations of sex discrimination, see Sec. 106.45(g). The grievance
procedures also provide steps to mitigate the harm a falsely accused
respondent may experience while participating in the grievance
procedures, such as requiring reasonable steps to protect the privacy
of the parties and witnesses during the pendency of a recipient's
grievance procedures. See Sec. 106.45(b)(5). Finally, nothing in the
final regulations prohibits a recipient from disciplining individuals
who make false statements, provided that the discipline is not imposed
based solely on the recipient's determination whether sex
discrimination occurred. See Sec. 106.45(h)(5).
In response to a commenter's suggestion that OCR's previously
issued guidance on Title IX and sexual conduct was too broad, we note
that although the definition of hostile environment sex-based
harassment aligns more closely with the longstanding interpretation of
Title IX in OCR's prior guidance, these final regulations, including
the definition of hostile environment sex-based harassment, do not
simply track the language in OCR's prior guidance. For example, the
definition of hostile environment sex-based harassment in the final
regulations is more specific because it explicitly requires that the
unwelcome sex-based conduct be subjectively and objectively offensive
and so severe or pervasive that it limits or denies a person's ability
to participate in or benefit from the recipient's education program or
activity, and it enumerates the factors that a recipient must, at a
minimum, consider in determining whether a hostile environment has been
created. Prior guidance, although similar, did not so clearly lay out
specific factors to be considered. See, e.g., 1997 Sexual Harassment
Guidance, 2001 Revised Sexual Harassment Guidance. In addition, as
discussed below in Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2), although the First Amendment
may in certain circumstances constrain the manner in which a recipient
responds to discriminatory harassment in the form of speech, recipients
have ample other means at their disposal to remedy a hostile
environment, and recipients remain free under the final regulations to
determine whether discipline is the appropriate response to sex-based
harassment, and if so, what form that discipline should take.
The Department disagrees that the definition of hostile environment
sex-based harassment is too vague to provide adequate notice of
prohibited conduct for certain individuals. The
[[Page 33496]]
subjective and objective standards have long been used by courts, as
discussed in the section below on Hostile Environment Sex-based
Harassment--Subjectively and Objectively Offensive (Sec. 106.2), and
by OCR in enforcing the civil rights laws. See 2001 Revised Sexual
Harassment Guidance, at 5; U.S. Dep't of Educ., Office for Civil
Rights, Notice of Investigative Guidance, Racial Incidents and
Harassment Against Students at Educational Institutions, 59 FR 11448,
11449 (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). Title IX protects all persons and recipients have an
obligation to conduct their grievance procedures free from
discrimination and bias. The final regulations also include provisions
to ensure a recipient complies with its obligations under Title IX,
Title VI, Section 504, the ADA, and the IDEA. See, e.g., Sec. Sec.
106.8(e), 106.44(g)(6)(i).
Changes: None.
Quid Pro Quo Sex-Based Harassment (Sec. 106.2)
Comments: Some commenters supported the proposed definition of quid
pro quo sex-based harassment because it would return to the
Department's longstanding enforcement practice that predated the 2020
amendments and include employees and other persons authorized by the
recipient to provide an aid, benefit, or service, such as teaching
assistants or volunteer coaches, and would include both explicit and
implicit conditioning of an aid, benefit, or service on sexual conduct.
One commenter urged the Department to remove ``unwelcome'' from the
proposed definition of quid pro quo sex-based harassment, stating that
the definition should cover all situations when an education aid,
benefit, or service is conditioned on sexual conduct without needing to
determine whether or not the sexual conduct was unwelcome.
Other commenters asked the Department to clarify who is an ``other
person authorized by the recipient'' in the definition of quid pro quo
sex-based harassment. One commenter said that student leaders of clubs
and captains of sports teams should be included as potential authorized
persons. Another commenter queried whether the Department intended to
limit ``aid, benefit, or service'' to academics. Another commenter
asked the Department to clarify whether board members or other persons
involved in the recipient's governance or similar activities are
``authorized'' by the recipient to provide an aid, benefit, or service,
regardless of whether they are paid.
One commenter urged the Department to clarify that agents and
employees can engage in quid pro quo sex-based harassment regardless of
whether they are actually authorized by the recipient to provide an
aid, benefit, or service as part of the recipient's education program
or activity. Another commenter recommended the Department clarify that
a threat of detriment is covered by the proposed definition of quid pro
quo sex-based harassment regardless of whether the threat is carried
out.
Discussion: The Department acknowledges the commenters' support of
the definition of quid pro quo sex-based harassment, which covers any
employee, 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 also acknowledges the commenter's support for
the inclusion of both explicit and implied conditioning of such aid,
benefit, or service on a person's participation in sexual conduct, and
confirms that implied conditioning is covered by the definition of quid
pro quo sex-based harassment.
The Department appreciates the commenter's suggestion to remove
``unwelcome'' from the proposed definition of quid pro quo sex-based
harassment but declines to do so because the unwelcomeness of conduct
is a well-established component of harassment law. See, e.g., Doe v.
Mercy Catholic Med. Ctr., 850 F.3d 545, 565 (3d Cir. 2017) (stating
that ``unwelcome sexual advances, requests for sexual favors, or other
verbal or physical actions of a sexual nature constitute quid pro quo
harassment'' if certain conditions are met); Koeppel, 252 F. Supp. 3d
at 1326, 1327 n.3 (policy prohibiting certain ``unwelcome'' advances
was neither vague nor overbroad); cf. 29 CFR 1604.11(a) (Title VII
regulations prohibiting certain ``[u]nwelcome sexual advances''). The
Department notes that quid pro quo sex-based harassment involves an
abuse of authority that is generally unwelcome. Additionally, as
explained in the July 2022 NPRM, acquiescence to the conduct or the
failure to complain, resist, or object to the conduct does not mean
that the conduct was welcome, and the fact that a person may have
accepted the conduct does not mean they welcome it. See 87 FR 41411-12.
The Department acknowledges the commenters' requests for
clarification regarding who is an ``other person authorized by the
recipient'' in the definition of quid pro quo sex-based harassment. The
Department declines to list student leaders or students generally as
potential authorized persons in the definition of quid pro quo sex-
based harassment because students are the intended beneficiaries of
aid, benefits, or services of the recipient's education program or
activity. If a student did ever occupy a position as some ``other
person authorized by the recipient to provide an aid, benefit, or
service,'' then the student would fall under the definition as it is in
these final regulations. The Department clarifies here that the example
of quid pro quo harassment provided in the July 2022 NPRM, of a
graduate student who conditioned a student's grade on sexual conduct,
was not intended to limit coverage of such harassment to an academic
aid, benefit, or service. See 87 FR 41412. Title IX covers all aspects
of the recipient's education program or activity, including
extracurricular activities. Moreover, quid pro quo sex-based harassment
covers harassment by members of a recipient's leadership, including
board members, paid or unpaid, to the extent those individuals are
authorized by the recipient to provide an aid, benefit, or service
under the recipient's education program or activity.
The Department also clarifies that quid pro quo sex-based
harassment can include situations in which an employee, agent, or other
person authorized by the recipient purports to provide and condition an
aid, benefit, or service under the recipient's education program or
activity on a person's participation in unwelcome sexual conduct, even
if that person is unable to provide that aid, benefit, or service. In
addition, the threat of a detriment falls within the definition of quid
pro quo sex-based harassment, whether or not the threat is actually
carried out because a threat to, for example, award a poor grade unless
a person participates in unwelcome sexual conduct, is a condition
placed on the provision of the student's education, which is a service
of the recipient.
Changes: None.
Hostile Environment Sex-Based Harassment--General (Sec. 106.2)
Comments: A number of commenters supported the proposed definition
of hostile environment sex-based harassment because it would align with
definitions of sexual and other forms of harassment in other Federal
and State civil rights laws, including Title VII. The commenters
believed this would
[[Page 33497]]
reduce confusion and provide consistency for students and employees.
Some commenters supported the proposed definition of hostile
environment sex-based harassment because it would empower survivors to
seek supportive measures and report sex-based harassment, reduce the
stigma around reporting and seeking assistance, and provide greater
clarity to students and administrators. Some commenters stated that, by
contrast, the definition of ``sexual harassment'' in the 2020
amendments has deterred complainants from reporting sexual harassment
because it sets a high standard that is viewed as difficult to meet.\7\
---------------------------------------------------------------------------
\7\ The commenters cited Heather Hollingsworth, Campus Sex
Assault Rules Fall Short, Prompting Overhaul Call Associated Press,
June 16, 2022, https://apnews.com/article/politics-sports-donald-trump-education-5ae8d4c03863cf98072e810c5de37048 (the University of
Michigan reported that their number of Title IX complaints dropped
from over 1,300 in 2019 to 56 in 2021 and Title IX complaints at the
University of Nevada, Las Vegas dropped from 204 in 2019 to 12 in
2021 and the number of cases that met the criteria for formal
investigation fell from 27 to 0).
---------------------------------------------------------------------------
One commenter asked the Department to explain why the proposed
definition of hostile environment sex-based harassment is consistent
with the statutory authority granted to the Department under Title IX
and should be granted deference.
Discussion: The Department agrees that the definition of ``sexual
harassment'' in the 2020 amendments failed to fully effectuate Title
IX's prohibition on sex discrimination. The Department believes the
final definition will allow the Department to more fully enforce Title
IX's nondiscrimination mandate because the definition covers a range of
sex-based misconduct consistent with Title IX's broad language, will
better align with the definitions of harassment in other civil rights
laws, and will reduce confusion.
The Department also disagrees with the commenters'
characterizations of OCR's prior guidance and underscores that prior
guidance made clear OCR's commitment to interpreting Title IX
consistent with the First Amendment. ``OCR has consistently maintained
that the statutes that it enforces are intended to protect students
from invidious discrimination, not to regulate the content of speech.''
U.S. Dep't of Educ., Office for Civil Rights, First Amendment Dear
Colleague Letter (July 28, 2003) (2003 First Amendment Dear Colleague
Letter), https://www2.ed.gov/about/offices/list/ocr/firstamend.html;
see also 2001 Revised Sexual Harassment Guidance, at 22-23; 2014 Q&A on
Sexual Violence, at 43-44. As discussed more fully in the July 2022
NPRM, nothing in the Title IX regulations requires a recipient to
restrict any rights otherwise protected by the First Amendment, and OCR
has expressed this view repeatedly in prior guidance. See 87 FR 41415.
For additional discussion of the First Amendment, see the below
discussion of Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2).
With respect to the Department's authority to adopt a definition of
hostile environment sex-based harassment, we refer to our extensive
explanation in the July 2022 NPRM. 87 FR 41393-94, 41410, 41413-14. The
Department further notes that Congress empowered and directed the
Department, and other Federal agencies, to issue regulations that
effectuate Title IX. 20 U.S.C. 1682. The Department also observes that
when Congress enacted Title IX in 1972, it imposed a broad prohibition
on discrimination based on sex in education programs and activities
that receive Federal financial assistance and since then has declined
on multiple occasions to limit the scope of Title IX.\8\ Title IX's
plain language prohibits any discrimination on the basis of sex in a
recipient's education program or activity and the Department maintains
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. 5803-58 (1972) (statement
of Sen. Bayh); see also N. Haven Bd. of Educ. v. Bell, 456 U.S. 512,
521 (1982) (``There is no doubt 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.' '').
---------------------------------------------------------------------------
\8\ For example, Congress passed the Civil Rights Restoration
Act in 1987, 20 U.S.C. 1687, to clarify the definition of ``program
or activity'' in Title IX, and Congress has also rejected multiple
amendments to exempt revenue producing sports from Title IX.
---------------------------------------------------------------------------
We further discuss the Department's authority to define ``sex-based
harassment'' in the below section on Hostile Environment Sex-Based
Harassment--the Davis standard.
Changes: None.
Hostile Environment Sex-Based Harassment--the Davis Standard (Sec.
106.2)
Background: In Davis, the Supreme Court held that a private action
under Title IX for money damages against a school for student-to-
student harassment will lie only if the harassment is ``so severe,
pervasive, and objectively offensive that it effectively bars the
victim's access to an educational opportunity or benefit.'' 526 U.S. at
633. For purposes of this subsection, the Department refers to the
requirement that harassment be so ``severe, pervasive, and objectively
offensive'' that it effectively bars access to an educational
opportunity or benefit as the ``Davis standard.''
Comments: A group of commenters supported the Department's proposed
definition of hostile environment sex-based harassment as compatible
with Davis. Citing Gebser, 524 U.S. at 286-87, 292, these commenters
further noted that the Supreme Court has recognized the Department's
regulatory authority to implement Title IX's nondiscrimination mandate,
even if the resulting regulations do not use the same legal standards
that give rise to a claim for money damages in private actions.
Some commenters opposed the proposed definition of hostile
environment sex-based harassment because it deviates from the Davis
standard. Some commenters stated that the Department failed to
specifically address either how the proposed definition of hostile
environment sex-based harassment is consistent with Davis or adequately
explain why the Department departed from the Davis standard. In
addition, a group of commenters argued that the Department should not
depart from the Davis standard because the Supreme Court held that
Title IX covers misconduct by recipients, not teachers or students. As
well, this group of commenters stated that courts have used the Davis
standard to award (or evaluate) injunctive relief, not merely damages,
in private party suits.
One commenter stated that OCR has previously rejected the idea that
a different definition for harassment applies in private lawsuits for
monetary damages as compared to OCR's administrative enforcement in the
2001 Revised Sexual Harassment Guidance.
One commenter argued that requiring a recipient to apply the Title
VII workplace standard to students in administrative enforcement of
Title IX would burden the recipient, create conflicts between Title
IX's application in the courts compared to the administrative context,
and lead to unpredictable applications of the law. Some commenters
urged the Department to maintain the definition of ``sexual
harassment'' in the 2020 amendments, including the reference to
unwelcome conduct that is both severe and pervasive.
Other commenters stated that the proposed regulations would allow a
recipient to benefit from the Davis standard if it was sued for
monetary damages under Title IX but would
[[Page 33498]]
subject individual students and employees to what they asserted is a
lower standard. The commenters further asserted that the potential loss
of Federal funding in the context of administrative enforcement would
put more pressure on administrators to punish student expression than
the threat of losing a lawsuit. Additionally, a group of commenters
asserted that, in light of the differences in ages of the students and
the purposes of education across institutions, and because it would be
reasonable for a school to refrain from disciplinary action that school
officials believe would violate the Constitution, a recipient should
have flexibility to make its own disciplinary decisions.
One commenter maintained that the Davis standard adequately
protects survivors of student-to-student harassment and stated that
plaintiffs have successfully used the Davis standard to hold a
recipient liable for its deliberate indifference to student-to-student
harassment.
Discussion: The Department appreciates the range of opinions
regarding the consistency of the proposed regulations with the Supreme
Court's decision in Davis. After reviewing applicable law, the public
comments received, and the Department's experience enforcing Title IX
with regard to harassment, the Department agrees with commenters who
supported the Department's proposed definition of hostile environment
sex-based harassment. The final definition of hostile environment sex-
based harassment is consistent with the Davis standard because, like
the Davis standard, the definition requires a contextual consideration
of the totality of the circumstances to determine whether harassment
impacted a complainant's or plaintiff's educational benefits, and only
accounts for conduct that is so serious that it implicates a person's
access to the recipient's education program or activity. Also, as
discussed in the section below on Hostile Environment Sex-Based
Harassment--Subjectively and Objectively Offensive (Sec. 106.2), the
Department added the word ``offensive,'' which also appears in the
Davis standard, to the final definition. The Department's final
definition is not identical to Davis, however, because the Department
also believes a broader standard is appropriate to enforce Title IX's
prohibition on sex discrimination in the administrative context, in
which educational access is the goal and private damages are not at
issue. To that end, the final regulations require that harassing
conduct be ``subjectively and objectively offensive'' and ``severe or
pervasive,'' rather than the Davis standard's ``severe, pervasive, and
objectively offensive.'' As described further below, the final
definition follows the text of Title IX, falls well within the
Department's authority to implement the statute, squares with the
Department's enforcement experience, and is compatible with Davis as
well as other relevant precedent.
The Department disagrees with commenters that the Department's
regulatory definition of hostile environment sex-based harassment must
be identical to the Davis standard. The Court in Davis did not set
forth any definition of hostile environment sex-based harassment--it
articulated the circumstances under which sexual harassment is
sufficiently serious to create institutional liability for private
damages when a recipient is deliberately indifferent to it. 526 U.S. at
639 (examining ``whether a district's failure to respond to student-on-
student harassment in its schools can support a private suit for money
damages''). Indeed, the Davis Court specifically indicated that the
question of whether student-to-student harassment could be
``discrimination'' for purposes of Title IX was not the issue in the
case. The Court explained that the defendants did not ``support an
argument that student-on-student harassment cannot rise to the level of
`discrimination' for purposes of Title IX,'' and contrasted that
question with the issue in the case, which concerned the standard for
damages liability under Title IX for such harassment. Id. Moreover, the
Davis Court explicitly stated that it was addressing the relevant scope
of discrimination ``in the context of a private damages action'' when
articulating that in such contexts, the sexual harassment must be
``severe, pervasive, and objectively offensive.'' Id. at 649-50.
Similarly, the Gebser Court was especially concerned about the
possibility of requiring a school to pay money damages for harassment
that exceeded its level of Federal funding, not about the scope of
prohibited harassment generally. See 524 U.S. at 289-90 (discussing
Title IX's administrative enforcement proceedings including the
opportunity for a recipient to take corrective measures, and observing,
in part, that ``an award of damages in a particular case might well
exceed a recipient's level of federal funding''). The Supreme Court has
noted that the words of an opinion must be evaluated in a ``particular
context,'' and readers must determine the ``particular work'' those
words do. Nat'l Pork Producers Council v. Ross, 598 U.S. 356, 374
(2023). So, although the Court in Davis used the phrase ``severe,
pervasive, and objectively offensive,'' the opinion as a whole makes
clear that the Court was describing only the standards applicable to
the ``particular context'' of a private action for damages--not the
standard applicable to administrative enforcement. The standard adopted
by the Court was intended, in part, to do the ``particular work'' of
imposing a high bar specifically for private damages claims. Davis, 526
U.S. at 652-53.
The Gebser Court 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. Davis itself emphasizes the point about the
Department's authority to issue rules for administrative enforcement.
After observing that Congress ``entrusted'' Federal agencies to
``promulgate rules, regulations, and orders to enforce the objectives''
of Title IX, Davis, 526 U.S. at 638, the Court repeatedly and
approvingly cited the Department's then-recently published guidance
regarding sexual harassment, see id. at 647-48, 651 (citing 1997 Sexual
Harassment Guidance, 62 FR 12039-42). That guidance specifically stated
that schools could be found to violate Title IX if the relevant
harassment ``was sufficiently severe, persistent, or pervasive to
create a hostile environment.'' 62 FR 12040. The guidance thus
articulated a broader standard for prohibited harassment than the
standard the Court articulated in Davis for purposes of private damages
liability. And rather than calling into question the validity of that
guidance, the Court in Davis relied on it. The Court in Davis also
cited approvingly the Department's racial harassment guidance
interpreting Title VI, see Davis, 526 U.S. at 648-49 (citing 1994
Racial Harassment Guidance, 59 FR 11449), which, like the Department's
1997 Sexual Harassment Guidance and 2001 Revised Sexual Harassment
Guidance, explained that a hostile environment may exist if the
relevant harassment was ``severe, pervasive or persistent.'' 59 FR
11449. Davis thus implicitly acknowledges the different standards that
may govern private claims as compared to administrative enforcement. In
addition, the Department is not aware of any court that restricted the
Department from applying the prior longstanding definition of hostile
environment sexual
[[Page 33499]]
harassment in the administrative enforcement context. The Department
thus disagrees with the claim that the definition of hostile
environment sex-based harassment in the final regulations must be
identical to the Davis standard--particularly given that the
Department's definition was developed to ensure that a recipient
operates its education program or activity in a manner that is fully
consistent with Title IX, and the Davis standard was developed with
attention to the challenges associated with imposing money damages on a
school district in a private civil action related to student-to-student
conduct.\9\
---------------------------------------------------------------------------
\9\ See Davis, 526 U.S. at 639 (describing the Court's focus on
the specific issue of damages in private civil actions); 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)); Gebser, 524 U.S. at
292 (recognizing the distinction between administrative enforcement
and civil liability).
---------------------------------------------------------------------------
Gebser and Davis thus align with the Department's long-held view
that its administrative enforcement standard need not be identical to
the standard for monetary damages in private litigation. The Department
made its view clear in the July 2022 NPRM and elsewhere in this
preamble. See 87 FR 41413-14. In the preamble to the 2020 amendments,
the Department similarly stated that it has regulatory authority to
select conditions and a liability standard different from those used in
Davis because the Department has authority to issue regulations that
require recipients to take administrative actions to effectuate Title
IX's nondiscrimination mandate.\10\ 85 FR 30033. The Department also
noted that the definition of ``sexual harassment'' in the 2020
amendments did ``not simply codify the Gebser/Davis framework'' and
instead it ``reasonably expand[ed] the definition[ ] of sexual
harassment'' to tailor it to the administrative enforcement context.
Id. The Department also reiterated in the preamble to the 2020
amendments that the Court in Davis did not opine as to what the
appropriate definition of sexual harassment must or should be for the
Department's administrative enforcement. Id.
---------------------------------------------------------------------------
\10\ Although the Department's administrative enforcement
proceedings differ in many ways from private lawsuits for money
damages, the Department does not mean to suggest that
administratively imposed remedial actions can never have financial
consequences. See 85 FR 30414-15 (``Remedial action required of a
recipient for violating Title IX or these final regulations may
therefore include any action consistent with 20 U.S.C. 1682, and may
include equitable and injunctive actions as well as financial
compensation to victims of discrimination or regulatory violations,
as necessary under the specific facts of a case.'').
---------------------------------------------------------------------------
The Department acknowledges that some courts have applied the Davis
standard when deciding whether to grant injunctive relief in addition
to damages, but that does not change the fact that the Davis standard
was developed in the context of determining whether a school district's
failure to respond to student-to-student harassment makes the school
district liable for monetary damages and that the Department is not
bound by that standard in the administrative enforcement context. The
cases cited by commenters do not establish that the final regulations
exceed the boundaries of Title IX and the Department's authority to
effectuate the statute. Davis, Gebser, and the reasoning offered in
this preamble are more persuasive grounds for determining the content
of the final regulations. Indeed, courts have recently confirmed that
the Department may use Davis and Gebser as the ``appropriate starting
point for administrative enforcement of Title IX,'' and then ``adapt[ ]
. . . that framework to hold recipients responsible for more than what
the Gebser/Davis framework alone would require.'' Victim Rts. L. Ctr.
v. Cardona, 552 F. Supp. 3d 104, 129-30 (D. Mass. 2021) (quotation
marks omitted) (emphasis added); accord New York v. U.S. Dep't of
Educ., 477 F. Supp. 3d 279, 297 (S.D.N.Y. 2020) (holding that it was
reasonable for the Department to conclude it ``was not required to
adopt the definition of sexual harassment in the Gebser/Davis
framework''). Consistent with that judicial guidance, the Department's
definition of hostile environment harassment covers more than that
described in Davis alone.
The Department disagrees with commenters who maintained that
distinctive standards for money damages and administrative enforcement
will be unduly burdensome, confusing, or otherwise improper given the
2020 amendments or other Department statements. The Davis standard has
been in place for Title IX civil actions seeking monetary damages since
1999--well over twenty years--but the Department has never adopted that
precise standard for the Department's Title IX administrative
enforcement actions. The Department is not aware of any persuasive
evidence that recipients were unable to understand the difference
between the administrative enforcement and civil damages contexts
during the period prior to or since the 2020 amendments. Nor has OCR's
experience in enforcing Title IX during that period provided a basis to
conclude that any differences between the administrative enforcement
and civil damages contexts were barriers to effective implementation of
Title IX's nondiscrimination requirement, or that the Department's
approach to enforcement infringed on protected speech rights. It is
OCR's experience that when recipients' responses to sex-based
harassment fail to comply with Title IX, such failure is not because
the recipient is unable to understand the differences between the
administrative enforcement and civil damages contexts, but rather
because the recipient failed to respond promptly and effectively to
known sex-based harassment.
The Department also appreciates the commenters' concern that a
recipient might impose a sanction on a student or employee for
violating its policy against sex discrimination, while the recipient
might not be held liable for money damages in a private civil action if
it did not impose such a sanction. But the Department is not convinced
the commenters identified a logical inconsistency between discipline
for those who engage in harassment and the absence of damages against a
recipient for responding to such harassment. A recipient must take
action to address sex-based harassment, which may include taking
disciplinary action against a respondent, regardless of whether the
complainant may be entitled to monetary damages due to the recipient's
deliberately indifferent response. That a recipient may not be liable
in damages for a student's or employee's harassment does not provide a
reason to conclude that the harassing student or employee is immune
from disciplinary action under Title IX or any other applicable
provision.
Nothing in the comments, the 2020 amendments, or previous
Department guidance documents dissuades the Department from concluding
in these final regulations that distinguishing between damages and
administrative enforcement standards is a lawful and well-reasoned
approach to effectuating Title IX.
Given the differences between the two contexts, there is ample
justification for the Department to apply a different standard to the
type of conduct to which a recipient must respond than to conduct for
which a private party may seek damages as a result of a recipient's
failure to respond. Requiring conduct to be ``severe and pervasive'' in
private actions for damages requires a broad showing--of intensity and
breadth--before a recipient can be held monetarily liable. Such a high
barrier is not necessary or appropriate in the
[[Page 33500]]
administrative context, in which the goal is to ensure access to
education.
Because evaluation of harassing conduct depends on the surrounding
circumstances, the Department believes it is appropriate to recognize
that conduct that is either pervasive or severe may create a hostile
environment that limits or denies a person's educational access. Under
the final definition of hostile environment sex-based harassment, a
recipient must still make an individualized determination as to whether
certain conduct constitutes prohibited sex-based harassment and may
conclude, for example, that certain conduct between employees is not
prohibited while the same conduct between students or between a student
and an employee is prohibited. As explained in the section below
discussing Hostile Environment Sex-Based Harassment--Factors to be
Considered (Sec. 106.2), whether unwelcome sex-based conduct has
created a hostile environment is determined based on the totality of
the circumstances. The final regulations thus call for a recipient to
consider the ages, roles, and other relevant characteristics of the
parties involved, including whether they are students or employees, in
making the determination. Based on the specific circumstances in which
a particular incident arises, a single serious incident--even if not
pervasive--may be so severe as to create a hostile environment. And
based on the specific circumstances in which it occurs, pervasive
conduct--even if no single occurrence of the conduct, taken in
isolation, is severe--may likewise create a hostile environment.
Moreover, in the context of administrative enforcement, a recipient
must be given notice and an opportunity to come into compliance before
the termination of funding. 20 U.S.C. 1682. Indeed, the Department's
administrative enforcement investigations generally result in
agreements with the recipient to take action that would bring them into
compliance. Thus, if the Department receives a complaint about severe
or pervasive harassment, and its investigation confirms the allegations
in that complaint, the Department will bring this conduct to the
attention of the recipient, and to discuss and determine appropriate
corrective measures with the recipient's input. These protective
guardrails and opportunity for the recipient to take corrective
measures do not apply in the context of private lawsuits for damages;
accordingly, a higher bar (i.e., severe and pervasive) may be
appropriate in that context. The definition of hostile environment sex-
based harassment in the final regulations takes account of the
differences between these two contexts and is consistent with the
Department's responsibility to administratively enforce Title IX's
strong and comprehensive prohibition on sex discrimination. See
generally 118 Cong. Rec. 5803-12 (1972) (statement of Sen. Bayh).
Regarding one commenter's concerns about applying Title VII
workplace standards to students, as explained in the preamble to the
July 2022 NPRM, the Department recognizes the differences between
educational and workplace environments. See 87 FR 41415-16. Although
the final definition of hostile environment sex-based harassment aligns
closely with the definition of hostile environment sexual harassment
under Title VII, the Department did not simply adopt the Title VII
definition and instead appropriately crafted the definition for use in
education programs or activities governed by Title IX. There are
substantial administrative and compliance benefits associated with
greater alignment, given that the vast majority of recipients must
comply with both Title IX and Title VII. Even considering the benefits
of more closely aligning the Title IX and Title VII standards, however,
the Department reiterates that the most fundamental consideration is
that the final definition of hostile environment sex-based harassment
will better enable the Department to implement Title IX's prohibition
on sex discrimination. See 87 FR 41415. The Department's commitment to
the effective implementation of Title IX is the essential and principal
reason for the final regulations. Most importantly, then, the
definition of hostile environment sex-based harassment aligns with
Congress's commitment in Title IX that no person shall be subjected to
sex discrimination under an education program or activity that receives
Federal financial assistance.
Regarding some commenters' characterization of the Department's
definition of hostile environment sex-based harassment as a ``lower
standard'' than the Supreme Court set out in Davis, the Department
reemphasizes that the Court in Davis did not define hostile environment
sexual harassment and that the definition of hostile environment sex-
based harassment in these final regulations requires satisfaction of
several elements before a hostile environment is established, including
that the sex-based conduct be both subjectively and objectively
offensive. Thus, the conduct in question must be (1) unwelcome, (2)
sex-based, (3) subjectively and objectively offensive, as well as (4)
so severe or pervasive (5) that it results in a limitation or denial of
a person's ability to participate in or benefit from the recipient's
education program or activity. The changes to the definition of
``sexual harassment'' in the 2020 amendments are important to the
effective implementation of Title IX, the Department determined, but
the degree of difference from the Davis standard should not be
overstated.
The Department is not persuaded by comments arguing that a
recipient is equally or more likely to (unlawfully) discipline students
because of fear of Federal funding loss than because of fear of damages
litigation by private parties. The Department's decades of enforcement
experience have not established a convincing basis for that conclusion.
In addition, the Department is not persuaded by comments asserting that
a recipient will be more driven to impose, and a respondent more likely
to face, unfair or unlawful discipline under the Department's
definition of hostile environment sex-based harassment than under the
Davis standard. First, as set out in the July 2022 NPRM and in the
discussion of Sec. Sec. 106.45 and 106.46 in this preamble, the final
regulations require a recipient to adopt grievance procedures that
include many procedural protections to effectuate investigations, and
evidence-based determinations, that are designed to ensure a fair
process for all parties, including, for example, equitable treatment
and an equal opportunity to access to relevant evidence, and the
objective evaluation of all relevant and not otherwise impermissible
evidence prior to determination. See 87 FR 41461-63; see also
discussion of Framework for Grievance Procedures for Complaints of Sex
Discrimination (II.C). Further, as discussed more fully in the section
below on Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2), the final regulations maintain the
language in Sec. 106.6(d) that nothing in the Title IX regulations
requires a recipient to restrict any rights that would otherwise be
protected from government action by the First Amendment. The Department
also maintains that the grievance procedure requirements in these final
regulations, combined with the acknowledgement that recipients must not
infringe on any First Amendment rights, including in the imposition of
discipline, provide protections that--like the Davis standard--will
ensure respondents do not face unfair discipline. See Davis,
[[Page 33501]]
526 U.S. at 648 (rejecting the argument that the Court's opinion would
require ```expulsion of every student accused of misconduct''').
As for commenters' concern that the Department's enforcement of the
definition of ``sex-based harassment'' might somehow prompt schools to
violate the First Amendment's protection of speech, the Department
acknowledges that, in the preamble to the 2020 amendments, the
Department stated that adopting a definition of ``sexual harassment''
closely aligned with the Davis standard ``helps ensure that Title IX is
enforced consistent with the First Amendment.'' 85 FR 30033. The
standard in the final regulations is also sufficiently closely aligned
with Davis for purposes of ensuring that Title IX is enforced
consistent with the First Amendment. The Department is not persuaded by
the commenters' interpretation of Supreme Court precedent to conclude
otherwise or by the commenters' characterizations of the relevant
considerations in setting an appropriate standard for hostile
environment sex-based harassment to effectuate Title IX. Moreover, the
Department notes again that Sec. 106.6(d) assures that nothing in
these regulations requires a recipient to take action that conflicts
with the U.S. Constitution, including the First Amendment. Further, the
Department repeats the statement from the July 2022 NPRM that 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.
See 87 FR 41415.
The final regulations enable broad protection against sex
discrimination in federally funded education programs and activities
while respecting individual constitutional rights. For example,
although the First Amendment may in certain circumstances constrain the
manner in which a recipient responds to discriminatory harassment in
the form of speech, recipients have ample other means at their disposal
to remedy a hostile environment. For additional discussion, see the
section below on First Amendment Considerations. Recipients can--
consistent with the Due Process Clause--impose discipline, where
appropriate and not inconsistent with the First Amendment, by following
the various procedures designed to protect respondents in grievance
procedures. For further explanation, see the discussions of the
grievance procedure requirements in Sec. Sec. 106.45 and 106.46.
The Department agrees with commenters insofar as they assert that
the Davis standard reconciles protected speech and actionable
discrimination, but the Department disagrees that the Davis standard is
the only such standard or was set out by the Court as such. Adopting
such a position would seem to rule out the Title VII standard for
hostile environment harassment even as to employees in workplaces.
Relatedly, while the Department agrees with the commenter who stated
that the Davis standard protects some complainants whom the commenter
describes as survivors of student-to-student harassment, the Davis
standard does not encompass the full meaning of Congress's prohibition
on sex discrimination. As discussed above, the Davis Court was not
addressing the full scope of Title IX's protection, only the standard
under which a private party could seek damages against a recipient in a
civil action for student-to-student sex-based harassment under Title
IX. See, e.g., 526 U.S. at 639, 649-50.
The Department recognizes that some recipients have adopted
harassment policies that have been successfully challenged on First
Amendment grounds and that, in some of those cases, courts have invoked
Davis in reaching their conclusions. See, e.g., Speech First, Inc. v.
Cartwright, 32 F.4th 1110 (11th Cir. 2022). The policies at issue in
those cases, however, do not contain the definition of ``sex-based
harassment'' set out in these final regulations and instead were
broader and less protective of speech.\11\ Moreover, the cases cited by
commenters do not represent the universe of relevant cases in which
courts have addressed First Amendment challenges to recipient policies
prohibiting harassment. In other cases, courts have upheld recipient
prohibitions on harassment against First Amendment challenges. See,
e.g., Rowles, 983 F.3d at 358-59; Koeppel, 252 F. Supp. 3d at 1326;
Marshall, 2015 WL 1179955, at *6-7. Also, with respect to elementary
schools and secondary schools, the Supreme Court has recognized that
school regulation of student speech may be appropriate to prohibit
``serious or severe bullying or harassment targeting particular
individuals,'' in addition to ``threats aimed at teachers or other
students.'' Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2045
(2021). We offer further discussion of the First Amendment in the
section on Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2) below.
---------------------------------------------------------------------------
\11\ For example, the policy at issue in Speech First stated
that discriminatory harassment ``may take many forms, including
verbal acts, name-calling, graphic or written statements (via the
use of cell phones or the internet), or other conduct that may be
humiliating or physically threatening.'' 609 F. Supp. 3d at 1114.
The policy's definition of hostile environment harassment did not
reference offensiveness, which is in the definition of hostile
environment sex-based harassment in these final regulations. It
defined hostile environment harassment as ``harassment that is so
severe or pervasive that it unreasonably interferes with, limits,
deprives, or alters the terms or conditions of education (e.g.,
admission, academic standing, grades, assignment), employment (e.g.,
hiring, advancement, assignment), or participation in a program or
activity (e.g., campus housing), when viewed from a subjective and
objective perspective.'' Id. at 1114-15. The court specifically
noted that the terms ``unreasonably'' and ``alter,'' neither of
which appear in the definition of hostile environment sex-based
harassment in the final regulations, were amorphous and imprecise.
Id. at 1121. The court also noted that the university's policy
prohibited students not only from committing the specified acts, but
also from condoning, encouraging, or even failing to intervene to
stop them. Id. at 1115 (internal quotation marks omitted). The
definition of hostile environment harassment in these final
regulations does not discuss condoning, encouraging, or failing to
intervene. Further, the court noted that the university's student
code of conduct stated that the discriminatory harassment policy,
among other policies, ``should be read broadly and [is] not designed
to define prohibited conduct in exhaustive terms.'' Id. at 1121
(internal quotation marks omitted).
---------------------------------------------------------------------------
Changes: As explained in the section below on Hostile Environment
Sex-Based Harassment--Subjectively and Objectively Offensive (Sec.
106.2), the Department has revised the definition of ``sex-based
harassment'' to add the word ``offensive'' to the subjective and
objective standard for establishing hostile environment sex-based
harassment.
Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2)
Comments: These comments have been organized into 12 categories,
and the discussion of all of these comments follows.
Support for Enforcing Title IX Protections Consistent With the First
Amendment
A group of commenters stated that the proposed definition of
hostile environment sex-based harassment would effectively enforce
Title IX's protections while ensuring consistency with the First
Amendment by requiring a totality of the circumstances approach to
assessing and evaluating the conduct from both a subjective and
objective perspective to ensure the conduct constitutes harassment and
is not only speech. Some commenters appreciated the Department's
commitment to freedom of speech and academic freedom and the
Department's intention to maintain the First Amendment
[[Page 33502]]
language in Sec. 106.6(d) in the 2020 amendments.
One commenter stated that the ``severe or pervasive'' standard in
the definition of hostile environment sex-based harassment recognizes
that the government may limit some protected speech in the educational
context to preserve its interest in ensuring equal access to education.
Prohibiting or Chilling Speech
Other commenters were concerned that the proposed definition of
hostile environment sex-based harassment would prohibit or chill speech
that is protected under the First Amendment. For example, some
commenters feared that the proposed definition would strip individuals
of their freedom of speech, assembly, press, and religion and disagreed
with the Department's contention that the proposed definition would not
cover protected speech.
Some commenters expressed concern about the potential for self-
censorship and referenced what they said were high rates of self-
censorship at postsecondary institutions. One commenter supported
maintaining the definition of ``sexual harassment'' in the 2020
amendments because the commenter said it ensures verbal conduct is not
punished in a way that chills speech or restricts academic freedom. The
commenter noted that the Department stated in the preamble to the 2020
amendments that the Department found evidence that recipients' anti-
harassment policies infringed on speech protected under the First
Amendment and encouraged students and faculty to avoid debate and
controversial ideas. See 85 FR 30154.
A group of commenters stated that the Department cannot compel
schools to suppress speech in a manner that would otherwise violate the
First Amendment even in private schools where the First Amendment does
not apply.
One commenter opposed the proposed definition of hostile
environment sex-based harassment because they believed that allegations
of sex discrimination would trigger burdensome supportive measures
against respondents, and thus students and employees would be forced to
avoid any speech that could be perceived as violating the proposed
regulations in order to avoid being subjected to such measures.
Reporting, Tracking, and Investigating
Some commenters expressed concern that nearly all classroom
discussions about sex-related topics would involve statements that may
constitute sex discrimination and would be subject to the reporting
requirements under proposed Sec. 106.44(c), which would chill free
speech of students and employees and lead to investigations. Some
commenters were concerned that postsecondary institutions would use
Title IX as an excuse to take adverse action against faculty whose
research includes controversial positions.
The Davis Standard and the First Amendment
Similar to the comments discussed above in the section on Hostile
Environment Sex-Based Harassment--the Davis Standard (Sec. 106.2),
some commenters argued that departing from the Davis standard would
violate the First Amendment. Some commenters stated that the proposed
definition of hostile environment sex-based harassment has already been
criticized by the U.S. Court of Appeals for the Eleventh Circuit in
Speech First, 32 F.4th at 1113, which involves a challenge to a
postsecondary institution's policy that used language the commenters
asserted is similar to the proposed definition. The commenters also
asserted that other courts have looked unfavorably on this definition
within the context of postsecondary institutions' anti-harassment
policies. These commenters argued that the only way for the Department
to avoid invalidation by a court is to use a definition of hostile
environment sex-based harassment that includes all of the elements of
the Davis standard.
Academic Freedom
Some commenters were concerned that the proposed definition of
hostile environment sex-based harassment would not adequately protect
academic freedom, asserting that the proposed definition would restrict
a recipient from allowing faculty and students at postsecondary
institutions to have a constructive dialogue and freely exchange ideas.
One commenter was concerned that students would be deterred from making
sex-based comments, which the commenter asserted would stop
postsecondary students from having the types of conversations from
which they might learn the most. Another commenter recommended that the
Department amend Sec. 106.6(d), which the Department did not propose
to amend, to reference academic freedom.
Content-Based and Viewpoint-Based Regulation
Some commenters objected to the proposed definition of hostile
environment sex-based harassment because they asserted it would impose
invalid content- and viewpoint-based restrictions on protected speech
and unconstitutionally compel speech on matters of public debate.
Compelled Speech
Some commenters objected to the language in the July 2022 NPRM
stating that even though ``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.'' 87 FR 41415. One commenter referenced
court decisions holding that freedom of speech includes the right to
speak freely and to refrain from speaking at all.
Speech Related to Abortion
The Department also received comments regarding speech related to
abortion. Some commenters were concerned that the proposed definition
of hostile environment sex-based harassment would silence speech and
viewpoints of students opposed to abortion rights. Other commenters
were concerned that students protesting abortion rights would be found
responsible for creating a hostile environment or retaliated against by
other individuals in the recipient's education program or activity for
allegedly creating a hostile environment under the proposed definition
of hostile environment sex-based harassment.
One commenter asked the Department to clearly state in the proposed
regulations that a recipient would not be compelled to promote abortion
and that speech, organizations, events, and speakers that oppose
abortion rights would not be considered in violation of Title IX.
Religious Liberty
Some commenters asserted that the proposed definition of hostile
environment sex-based harassment conflicted with the First Amendment's
guarantee of religious liberty. One commenter was concerned that the
proposed regulations would threaten freedom of expression and academic
inquiry at religiously affiliated schools and for professors and
students whose areas of teaching and study are related to morality or
religion. The commenter stated that requiring students and employees to
conform to the Department's views on these issues related to sexual
orientation, gender identity, and termination of pregnancy would
violate the First Amendment, burden those who hold disfavored
[[Page 33503]]
views including views informed by deeply held religious convictions and
those who teach about these topics, and lead students and professors to
refrain from espousing their beliefs because of the personal risk
associated with doing so.
Some commenters asked the Department to ensure that the final
regulations not require or encourage a recipient to punish religious
exercise and speech, including by amending the proposed regulations to
state that they do not require an individual or recipient to endorse or
suppress views in a way that violates their sincerely held religious
beliefs.
Freedom of Association
Some commenters stated that freedom of association protects the
right to exclude others based upon the group's messaging. One commenter
was concerned that under the proposed definition of hostile environment
sex-based harassment, an LGBTQI+ student group could be forced to allow
non-LGBTQI+ students to join or lead the group and urged the Department
to maintain the definition of ``sexual harassment'' from the 2020
amendments. Another commenter said that even if student groups benefit
from Federal funding provided to their postsecondary institutions, such
funding does not transform the actions of these groups into State
action.
Supremacy of the First Amendment and Statutory Interpretation
One commenter was concerned about the proposed removal of some
references to the primacy of the First Amendment that were in the 2020
amendments and the reduced discussion of the First Amendment in the
July 2022 NPRM. The commenter urged the Department to explicitly
clarify the ``supremacy of constitutional concerns'' when they conflict
with Title IX to avoid recipients being forced to expend resources on
litigation.
Another commenter argued the Department violated the Administrative
Procedure Act because, in the July 2022 NPRM, the Department did not
engage meaningfully with the First Amendment analysis in the preamble
to the 2020 amendments. This commenter asserted that the Department
must provide a reasoned explanation for why it disregarded the facts
and circumstances that the Department considered in the 2020 amendments
and explain why it now takes an opposing view.
Private Recipients and Free Speech
One commenter expressed concern that the proposed regulations do
not make allowances for State laws that extend free speech rights to
students at private schools and that proposed Sec. 106.6(b) would
preempt such laws. Another commenter recommended that the Department
extend Sec. 106.6(d) to reach private recipients.
Discussion: The Department appreciates the commenters' thoughtful
views on the First Amendment implications of the proposed definition of
hostile environment sex-based harassment. The Department is fully
committed to the freedom of speech, the freedom of association,
religious liberty, and academic freedom. The Department reaffirms the
importance of the free exchange of ideas in educational settings and
particularly in postsecondary institutions, consistent with the First
Amendment. Indeed, a free exchange of different ideas is essential to
high quality education. Nothing in the Title IX regulations restricts
any rights that would otherwise be protected from government action by
the First Amendment. See 34 CFR 106.6(d).
Consistent with those commitments, and after a thorough review of
the 2020 amendments and information received prior to, during, and
after the issuance of the July 2022 NPRM, the Department is convinced
that the definition of hostile environment sex-based harassment in the
final regulations does not infringe the constitutional rights of
students, employees, and all others. The Department therefore agrees
with those commenters who concluded that the proposed definition of
hostile environment sex-based harassment would provide more protection
from discrimination than the 2020 amendments and fully effectuate Title
IX's nondiscrimination mandate, while still respecting the First
Amendment rights of students, employees, and all others.
The Department acknowledges that there can be tension between laws
and policies that target harassment and the freedom of speech protected
by the First Amendment. See, e.g., Saxe v. State Coll. Area Sch. Dist.,
240 F.3d 200, 206-07 (3d Cir. 2001). The Department nonetheless
believes that the final regulations appropriately protect the rights
guaranteed under the First Amendment. First, as explained above in
Hostile Environment Sex-Based Harassment--the Davis standard (Sec.
106.2), the final regulations maintain the language from Sec. 106.6(d)
in the 2020 amendments that nothing in the Title IX regulations
requires a recipient to restrict any rights that would otherwise be
protected from government action by the First Amendment. Second, the
Department reiterates the statement from the July 2022 NPRM that 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.
See 87 FR 41415. The Department maintains that although the First
Amendment may in certain circumstances constrain the manner in which a
recipient responds to sex-based harassment in the form of speech,
recipients have ample other means at their disposal to remedy a hostile
environment, and recipients remain free under the final regulations to
determine whether discipline is the appropriate response to sex-based
harassment, and if so, what form that discipline should take.
The Department further notes that the government's compelling
interest in preventing discrimination is well established. See, e.g.,
Saxe, 240 F.3d at 209 (``preventing discrimination in the workplace--
and in the schools--is not only a legitimate, but a compelling,
government interest'' (citing Bd. of Dirs. of Rotary Internat'l v.
Rotary Club of Duarte, 481 U.S. 537, 549 (1987))). And the Supreme
Court has specifically recognized the government's ``compelling
interest in eradicating discrimination'' on the basis of sex. Roberts
v. U.S. Jaycees, 468 U.S. 609, 623-24 (1984) (explaining that the goal
of eliminating sex discrimination and assuring equal access to publicly
available goods and services is ``unrelated to the suppression of
expression'' and ``plainly serves compelling state interests of the
highest order'').
Although sex-based harassment policies may implicate the First
Amendment, the definition of hostile environment sex-based harassment
in the final regulations is narrowly tailored to advance the
Department's compelling interest in eliminating discrimination on the
basis of sex. Indeed, in response to concerns commenters raised
regarding the First Amendment implications of the proposed definition,
the Department has revised the definition to retain the 2020
amendments' reference to offensiveness. Thus, the definition in the
final regulations covers only sex-based conduct that is unwelcome, both
subjectively and objectively offensive, and so severe or pervasive that
it limits or denies a person's ability to participate in or benefit
from the recipient's education program or activity.
The Department acknowledges that ``[l]oosely worded'' anti-
harassment
[[Page 33504]]
laws may be in tension with the First Amendment, see Saxe, 240 F.3d at
207, but the Department's definition of hostile environment sex-based
harassment is not. Unlike the policy that was invalidated in Saxe,
which (among other things) covered speech that merely had the
``purpose'' of interfering with a person's education performance, see
id. at 210, the Department's definition of hostile environment sex-
based harassment is narrowly tailored to advance the compelling
interest in eliminating discrimination on the basis of sex because it
requires that the harassment have the actual effect of limiting or
denying a person's ability to participate in or benefit from a
recipient's education program or activity. Accord, e.g., Robinson v.
Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1536 (M.D. Fla. 1991)
(concluding that application of Title VII to proscribe hostile
environment harassment was narrowly tailored to advance a compelling
government interest).
Other case law likewise indicates that some prohibitions on
harassment that are directed at speech that materially and
substantially disrupts school activities are consistent with the First
Amendment. The Supreme Court in Tinker v. Des Moines Independent
Community School District stated that schools may discipline speech
that would ``impinge upon the rights of other students'' or
substantially disrupt school activities. 393 U.S. 503, 509 (1969). The
Department maintains that the type of conduct prohibited by the
definition of hostile environment sex-based harassment in the final
regulations ``invades the rights of others'' to receive an education
free from sex discrimination and therefore is ``not immunized by the
constitutional guarantee of freedom of speech.'' Id at 513. Other cases
from the elementary school and secondary school context have expressed
similar conclusions. See, e.g., Parents Defending Educ. v. Linn Mar
Cmty. Sch. Dist., 83 F.4th 658 (8th Cir. 2023) (distinguishing between
harassing speech that involves an invasion of the rights of others with
speech that is merely ``disrespectful''); Harper v. Poway Unified Sch.
Dist., 445 F.3d. 1166, 1185 (9th Cir. 2006) (``although Tinker does not
allow schools to restrict the non-invasive, non-disruptive expression
of political viewpoints, it does permit school authorities to restrict
`one particular opinion' if the expression would `impinge upon the
rights of other students' or substantially disrupt school activities''
(citation omitted)); Parents Defending Educ. v. Olentangy Loc. Sch.
Dist., No. 23-cv-01595, 2023 WL 4848509, at *2 (S.D. Ohio July 28,
2023) (policies prohibiting students from engaging in harassment ``fit
squarely within this carve-out to schoolchildren's First Amendment
rights: they prohibit only speech that gives rise to fears of physical
or psychological harm, materially affect student performance,
substantially disrupt the operation of the school, or create a hostile
educational environment''); L.M. v. Town of Middleborough, No. 23-cv-
11111, 2023 WL 4053023, at *6 (D. Mass. June 26, 2023) (schools can
prohibit speech that is in ``collision with the rights of others to be
secure and be let alone'', and listing cases).
Separate from the narrow-tailoring inquiry, some courts have
concluded that appropriately delineated anti-harassment laws encompass
only speech that is unprotected by the First Amendment. See, e.g.,
Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 137 (1999)
(explaining that ``harassing speech that is sufficiently severe or
pervasive to constitute employment discrimination is not
constitutionally protected''). To be sure, the Department agrees that--
as courts have recently and repeatedly stated--``[t]here is no
categorical `harassment exception' to the First Amendment's free speech
clause.'' United States v. Yung, 37 F.4th 70, 78 (3d Cir. 2022)
(quoting Saxe, 240 F.3d at 204). Nonetheless, courts have concluded,
for various reasons, that certain forms of harassing speech do indeed
lack First Amendment protection. Some courts have concluded that
certain forms of purely verbal harassment constitute ``speech acts''
that are entirely outside the scope of the First Amendment. This
explanation applies most naturally to quid pro quo harassment. See,
e.g., Saxe, 240 F.3d at 208 (``a supervisor's statement `sleep with me
or you're fired' may be proscribed'' because, despite ``the purely
verbal quality of such a threat, it surely is no more `speech' for
First Amendment purposes than the robber's demand `your money or your
life' ''). In a similar fashion, but using different terminology,
courts have sometimes treated harassment as a form of conduct, thus
leaving it outside the scope of the First Amendment even when the
harassment was accomplished through speech. See, e.g., Thorne v.
Bailey, 846 F.2d 241, 243 (4th Cir. 1988) (repeated and insulting
telephone calls constituted a ``course of conduct'' that was ``not
protected speech'' (citing State v. Thorne, 175 W. Va. 452, 454, 333
S.E.2d 817, 819 (1985))); State v. Richards, 127 Idaho 31, 36 (Ct. App.
1995) (speech uttered with ``particular purpose to inflict mental
discomfort on another . . . is not protected speech, but conduct that
legitimately may be proscribed''); Robinson, 760 F. Supp. at 1535
(``pictures and verbal harassment are not protected speech because they
act as discriminatory conduct'').
Still other courts have concluded that the Supreme Court's captive-
audience doctrine justifies prohibitions on hostile environment
harassment, even when they reach speech. See, e.g., Aguilar, 21 Cal.
4th at 159 (Werdegar, J., concurring) (``The Supreme Court has in a
number of cases recognized that when an audience has no reasonable way
to escape hearing an unwelcome message, greater restrictions on a
speaker's freedom of expression may be tolerated.'' (citing, among
other cases, Frisby v. Schultz, 487 U.S. 474 (1988))). The ``status [of
a victim] as forced recipients of [a harasser's] speech'' thus ``lends
support to the conclusion that restrictions on [the harasser's] speech
are constitutionally permissible.'' Id. at 162; see also, e.g.,
Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist., 605 F.3d 703, 710 (9th
Cir. 2010) (stating in dicta that ``racial insults or sexual advances
directed at particular individuals in the workplace may be prohibited''
because they `` `intrude upon the targeted listener' '' and `` `do so
in an especially offensive way' '' (quoting Frisby, 487 U.S. at 486
(alteration omitted))). And indeed, in the Department's experience,
many students subject to hostile environment harassment lack reasonable
ways to avoid the harasser because of the difficulties inherent in
transferring to a different school or taking similar measures.
The Department does not mean to suggest that any of the above-
described rationales is the single correct explanation for why courts
have concluded that some prohibitions on harassment are either
sufficiently narrow to withstand First Amendment scrutiny or sweep in
only certain forms of harassment that are not protected by the First
Amendment. But whatever the underlying doctrinal theory, it is clear
from the case law that narrowly drawn anti-harassment laws are
permissible. The Court's three decades-old decision in Harris is
perhaps most clear on this issue. The harassment at issue in that case
took the form of pure speech, and both the parties and amici raised
First Amendment objections to the application of Title VII to that
speech. See, e.g., Reply Brief of Petitioner, Harris, 510 U.S. 17 (No.
92-1168), 1993 WL 632335, at *10-11 (arguing that
[[Page 33505]]
there is no First Amendment concern when Title VII is applied only to
speech that is ``sufficiently severe or pervasive to alter the
conditions of the victim's employment''). The Court concluded--without
acknowledging any First Amendment concern--that Title VII could be
applied to the speech. See Harris, 510 U.S. at 23. Had the Court
determined that there were potential First Amendment concerns at issue
in this case, the Court had the opportunity to address them and adjust
its conclusion accordingly, but it did not. The Department agrees that
the First Amendment allows for proscription of a narrow category of
speech that, based on the totality of the circumstances, constitutes
hostile environment sex-based harassment. Accord, e.g., Aguilar, 21
Cal. 4th at 137 (relying on Harris to uphold a proscription on hostile
environment harassment). Because the Department's definition of hostile
environment sex-based harassment in the final regulations is, in the
relevant ways, consistent with the scope of the proscription of hostile
environment harassment at issue in Harris; because Sec. 106.6(d)
continues to state that nothing in the Department's Title IX
regulations requires a recipient to restrict rights otherwise protected
under the First Amendment; and because the Department continues to
recognize that a recipient must formulate, interpret, and apply its
regulations 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, the final regulations are fully consistent with
the First Amendment. Moreover, as explained elsewhere in this section,
although a recipient must respond to speech that creates a hostile
environment based on sex, depending on the facts and context, the First
Amendment may constrain or limit the manner in which a recipient
responds to discriminatory harassment in the form of speech (e.g., by
using means other than disciplinary action to end and remedy the
hostile environment) without obviating the recipient's obligation for
its response to be effective.
The Department is not persuaded by the commenters' constitutional
concerns about the final regulations' definition of hostile environment
sex-based harassment. A number of commenters relied on Speech First,
which held that a public university's ``discriminatory harassment''
policy should have been preliminarily enjoined. 32 F.4th at 1110. The
court emphasized a range of considerations regarding the policy's
breadth, including that the policy extended to conduct based on ``a
long list of characteristics'' such as political affiliation, religion,
non-religion, and genetic information; that it reached ``other conduct
that may be humiliating,'' not only ``verbal acts, name-calling, [and]
graphic or written statements''; that it applied to conduct that, among
other effects, ``unreasonably . . . alters'' another student's
``participation in a university program or activity''; and it
prohibited students ``not only from committing the specified acts, but
also from `[c]ondoning,' `encouraging,' or even `failing to intervene'
to stop them.'' Id. at 1115; see also id. at 1121 (adding that the
student code of conduct indicated that the policy ``should be read
broadly'' and was ``not designed to define prohibited conduct in
exhaustive terms'' (internal quotation marks omitted)). Although the
university policy under review did reference harassment that is severe
or pervasive, see id. at 1114-15, that one feature, as highlighted, was
not the court's focus. The definition of hostile environment sex-based
harassment adopted in these final regulations is far different. The
definition is narrower, clearer, and tailored to harms that have long
been covered by hostile environment laws. Among other differences, the
definition in the final regulations proscribes only certain conduct
that ``limits or denies'' a person's ability to participate in a
recipient's education program or activity, rather than any conduct that
might ``alter'' such participation. In addition, the court in Speech
First faulted the policy at issue for sweeping in conduct that ``may be
humiliating,'' 32 F.4th at 1125, but the definition in the final
regulations requires that conduct actually be both subjectively and
objectively offensive.\12\
---------------------------------------------------------------------------
\12\ The case cited by one commenter, Cohen v. San Bernardino
Valley College, 92 F.3d 968 (9th Cir. 1996), is similarly
distinguishable. The policy at issue there, among other differences
from the definition in these final regulations, prohibited conduct
that had the mere ``purpose'' of creating an offensive ``learning
environment''--not just the actual effect of limiting or denying
access to an educational benefit or opportunity. Id. at 971. The
court also expressly left open the question of whether a more
carefully worded policy would be consistent with the First
Amendment. Id. at 972.
---------------------------------------------------------------------------
Similar to the commenters who cited Speech First to support their
concerns, one commenter asserted that the court in Perlot v. Green, 609
F. Supp. 3d 1106 (D. Idaho 2022), looked unfavorably at a postsecondary
institution's harassment policy that the commenter asserted applied a
definition of sexual harassment similar to the proposed definition. But
the court in Perlot did not question the university's definition of
hostile environment sex-based harassment. Id. at 1120-21. The issue in
the Perlot case was that plaintiffs had been issued no-contact orders
for conduct that did not ``appear[] to be so `severe, pervasive, and
objectively offensive' as to hamper Jane Doe's access to her University
education,'' and the school did not seem to be arguing otherwise. Id.
at 1120.
Although some commenters fear that the proposed definition of
hostile environment sex-based harassment would require postsecondary
institutions to enact unconstitutional content- and viewpoint-based
restrictions on protected speech, that fear is ungrounded. The final
regulations do not, in any way, require postsecondary institutions to
enact constitutionally impermissible content- and viewpoint-based
restrictions and as explained elsewhere, the Department has narrowly
tailored the definition of hostile environment sex-based harassment to
advance a compelling government interest unrelated to the suppression
of speech. Further, Sec. 106.6(d) continues to provide that nothing in
the final regulations limits any rights that would otherwise be
protected by the First Amendment. The Department also disagrees with
the suggestion that the final regulations' definition of hostile
environment sex-based harassment itself discriminates based on
viewpoint. The final regulations neither silence any particular view
nor compel anyone to adopt any particular view on any issue. In
contrast to the anti-discrimination policy in Speech First, 32 F.4th at
1126, the final regulations' definition of hostile environment sex-
based harassment applies to conduct that is unwelcome, subjectively and
objectively offensive, and so severe or pervasive that it limits or
denies participation in or benefit from an education program or
activity, regardless of the view a person expresses or the perspective
the person takes when engaging in that conduct. Although the court in
Speech First, 32 F.4th at 1126, suggested the policy at issue in that
case should be considered viewpoint-based, the definition of sex-based
hostile environment harassment in the final regulations is different
from that policy. In contrast to the anti-discrimination policy in
Speech First, the final regulations' definition of hostile environment
sex-based harassment applies to conduct that is unwelcome, subjectively
and objectively offensive, and so severe or pervasive that it limits or
denies participation in or benefit from an education program or
[[Page 33506]]
activity, regardless of the view a person expresses or the perspective
the person takes when engaging in that conduct. As one court reviewing
a school harassment policy recently put it, the ``crux is whether the
ban applies equally to individuals on either side of a given debate.''
Olentangy Loc. Sch. Dist. Bd. of Educ., 2023 WL 4848509, at *16.
To be clear, the final regulations' definition of hostile
environment sex-based harassment does not establish an open-ended,
discretionary inquiry. The final regulations only prohibit conduct that
meets all the elements listed above--that the conduct is unwelcome,
sex-based, subjectively and objectively offensive, and also so severe
or pervasive that the conduct limits or denies a person's ability to
participate in or benefit from the recipient's education program or
activity. The final regulations' reference to the totality of the
circumstances derives from these very specific and required elements
and is meant to ensure that no element or relevant factual
consideration is ignored. Moreover, the final regulations, as discussed
further below, enumerate long-established factors that are relevant in
this context, including the degree to which the conduct affected the
complainant's ability to access the recipient's education program or
activity; the type, frequency, and duration of the conduct; the
parties' ages, roles within the program or activity, previous
interactions, and other factors about each party that may be relevant
to evaluating the effects of the alleged unwelcome conduct; the
location of the conduct and the context in which the conduct occurred;
and other established instances of sex-based harassment in the
recipient's education program or activity. As discussed further below,
the Department is not persuaded by the commenters' arguments for
excluding any of these considerations.
Moreover, the Department disagrees with suggestions made by
commenters that multiple constraining elements in regulations, or
directives to ensure the consideration of multiple relevant facts, like
the totality of the circumstances analysis in the final definition of
hostile environment sex-based harassment, make those regulations vague
or otherwise constitutionally problematic. As discussed elsewhere, the
definition of hostile environment sex-based harassment requires
consideration of the totality of the circumstances in determining
whether a person has been subjected to a hostile environment, which
aims to ensure that recipients consider context when determining
whether each element is met, to avoid inappropriately sweeping in
conduct or speech that does not actually create a hostile environment
under the circumstances. For additional discussion see the section
above on Sex-Based Harassment--Vagueness and Overbreadth.
To the extent commenters suggest that no regulation of educational
or work environments may validly reach communication that otherwise
qualifies as prohibited harassment, that position cannot be squared
with decades of law on hostile environments under Title VI, Title VII,
Title IX, Section 504, and other Federal or State statutes, nor does it
leave room for either the 2020 amendments or these final regulations.
The Department rejects that suggestion. The Department notes that, as
discussed elsewhere in this preamble, the Supreme Court in both Harris
and Davis upheld similar proscriptions on hostile environment
harassment without raising any First Amendment concerns. Indeed, the
dissent in Davis raised First Amendment issues, 526 U.S. at 667
(Kennedy, J., dissenting), yet the majority apparently viewed schools'
authority to proscribe harassment as so uncontroversial that a response
to the First Amendment issue was unwarranted.
The Department also strongly disagrees with claims that students
will be, in the words of some commenters, subjected to ``federally
mandated censorship,'' a ``civility code,'' or a ``speech ban,'' or
that the regulations will essentially prohibit ``hate speech,''
``stifle the `marketplace of ideas' on campuses,'' or enable people to
``weaponize'' Title IX against those with whom they disagree on
political, religious, and social issues. There is no basis for those
claims in the text of the proposed or final regulations or our
explanation of it. The Department also notes a commenter's assertion
that some recipients may adopt policies that unduly restrict students'
expression, but, given that the final regulations contain no such
requirement, and in light of Sec. 106.6(d), the Department does not
anticipate that recipients will do so. Similarly, the Department notes
some commenters' concerns about campus speech codes. But there is
nothing in either the proposed or final regulations that requires
adoption or implementation of such a code. Likewise, the Department
acknowledges concerns that the final regulations' definition of hostile
environment sex-based harassment may chill speech and could lead to
investigations and adverse actions against certain faculty members. But
these concerns are speculative because there is no credible threat that
the Department will enforce these final regulations so as to require
restrictions on speech that would violate the First Amendment. The
Department has clearly stated in Sec. 106.6(d) that nothing in the
Title IX regulations restricts any rights that would otherwise be
protected from government action by the First Amendment. The Department
will offer technical assistance, as appropriate, to promote compliance
with these final regulations, including how to appropriately apply the
definition of hostile environment sex-based harassment so as not to
infringe on First Amendment rights.
The Department rejects a commenter's contention that the definition
of hostile environment sex-based harassment will somehow lead to more
incidents of other forms of sex-based harassment such as ``violence and
other hateful conduct.'' The commenter offered no sound basis for that
prediction, and the Department is aware of none. The Department is not
aware that there was any increase in other discriminatory conduct
following the release of prior Department guidance on sexual harassment
and sexual violence, including the 2001 Revised Sexual Harassment
Guidance or 2011 Dear Colleague Letter on Sexual Violence, or since the
Equal Employment Opportunity Commission's (EEOC) regulations on sexual
harassment, 29 CFR 1604.11, went into effect.
The Department disagrees that the final regulations improperly
compel speech by recipients, including speech related to sexual
orientation, gender identity, or abortion. The Department has long
acknowledged that, although not required to do so, schools may denounce
students' derogatory statements, including derogatory statements that
create a hostile environment. See 2001 Revised Sexual Harassment
Guidance, at 22. When a school chooses to voice its disagreement with
student speech, it exercises its own First Amendment rights, cf.
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47
(2006), and contributes to the diversity of voices on campus. Thus,
responding to a hostile environment in such a fashion is fully
consistent with the First Amendment. Further, while the final
regulations require that recipients respond to sex-based harassment,
the final regulations do not dictate that a recipient take any specific
disciplinary action in response to sex-based harassment, and any such
action a recipient may take must account for and comply with the First
Amendment. See 34 CFR 106.6(d). A recipient thus can effectively
address sex-based hostile environment harassment in ways that
[[Page 33507]]
do not implicate or burden the First Amendment rights of students,
employees, or others.
The Department does not prejudge or comment on whether specific
cases or factual scenarios comply with Title IX prior to conducting an
investigation and evaluating the relevant facts and circumstances. The
Department notes again that the regulations focus on Title IX's
protection from discrimination based on sex, and they do not single out
for prohibition any specific view on sexual orientation, gender
identity, or any other topic mentioned by commenters. As Sec. 106.6(d)
makes clear, and as the Department reaffirms, recipients cannot use
Title IX to limit the free exercise of religion or protected speech or
expression, or otherwise restrict any other rights guaranteed against
government action by the U.S. Constitution. Recipients must fulfill
their obligations in a manner that is fully consistent with the First
Amendment and other guarantees of the Constitution of the United
States. See 34 CFR 106.6(d).
The Department acknowledges commenters' efforts to identify
situations in which they believe recipients improperly implemented the
Title IX regulations in a manner that may have infringed the free
expression rights of a student or faculty member or that could
constitute hostile environment sex-based harassment and potentially
lead to an investigation. The Department will continue to enforce the
Title IX regulations as promulgated and address improper implementation
of the Title IX regulations through the Department's complaint process
and the provision of technical assistance. The Department cannot
comment on the identified situations or hypotheticals without
conducting a fact-specific investigation. Moreover, in accordance with
Sec. 106.6(d), nothing in the regulations would require a recipient to
restrict any rights that would otherwise be protected by the First
Amendment.
Regarding commenters' concern that professors may have stopped
teaching certain subjects that students may find offensive or that they
have left teaching altogether, we note that nothing in the Title IX
regulations restricts the academic freedom of faculty members. The
regulatory limitation on the Department regarding curricular materials
under Title IX remains unchanged: ``Nothing in this regulation shall be
interpreted as requiring or prohibiting or abridging in any way the use
of particular textbooks or curricular materials.'' 34 CFR 106.42.
Further, the determination whether a hostile environment exists is
inherently fact-based, and the Department considers the academic
setting of a person's conduct to be highly relevant. Conduct that may
very well amount to harassment in other settings may not amount to
harassment if engaged in appropriately in the academic setting,
especially in the context of postsecondary academic discourse. In light
of this, the Department does not believe it is necessary to revise
Sec. 106.6(d) to explicitly protect academic freedom.
Regarding commenters' concerns related to religious liberty and the
freedom of association, the Department notes that as stated above and
reflected in Sec. 106.6(d), the Title IX regulations do not require
recipients to restrict any rights that would otherwise be protected
from government action by the First Amendment, including the freedom of
speech, the free exercise of religion, and the freedom of association.
The final regulations implement Title IX's protection from
discrimination based on sex while also respecting the First Amendment
rights of students, staff, and other individuals. In response to
commenters who expressed concern about the final regulations' effect on
religiously affiliated recipients, the Department emphasizes that both
the statute at 20 U.S.C. 1681(a)(3) and Sec. 106.12 of the current
regulations--which the Department is not changing--provide that
educational institutions controlled by a religious organization are not
subject to Title IX or to Title IX regulations to the extent
application of the statute or the regulations would not be consistent
with the religious tenets of the controlling religious organization.
The final regulations adopted here set out requirements to fulfill
Congress's commitment that no person shall be subject to exclusion,
denial of benefits, or discrimination based on sex in a recipient's
education program or activity. In addition, the Department notes that
Title IV of the Civil Rights Act of 1964, which is enforced by the
Department of Justice's Civil Rights Division, authorizes the
Department of Justice to address complaints alleging religious
discrimination by public schools and higher education institutions.
In response to a commenter's concern regarding the membership
practices of student groups, the Department notes that to the extent
Title IX prohibits student groups from discriminating on the basis of
sex, including sexual orientation and gender identity, those groups
may, consistent with Title IX and other applicable laws, impose
membership criteria not related to sex that promote the student group's
mission (for example, requiring that members have a legitimate good
faith interest in the group's mission). The Department agrees with a
commenter's statement that even if student groups benefit from Federal
funding provided to their postsecondary institutions, such funding does
not turn the actions of these groups into State action.
In response to a commenter's concern that the Department removed
two of three references to the primacy of the First Amendment that were
in the 2020 amendments, the Department notes that the commenter did not
specify what references were deleted. The Department emphasizes,
however, that the removal of any references to the primacy of the First
Amendment from the 2020 amendments was not intended to reduce or signal
lesser First Amendment protections under these final regulations and
reiterates that, consistent with Sec. 106.6(d), nothing in these final
regulations requires a recipient to restrict any rights protected by
the First Amendment. Although the First Amendment may in certain
circumstances affect the manner in which a recipient responds to
discriminatory harassment in the form of speech, recipients have ample
other means at their disposal to remedy a hostile environment and
recipients remain free under the final regulations to determine whether
discipline is the appropriate response to sex-based harassment, and if
so, what form that discipline should take.
Regarding the commenter who argued that the Department's July 2022
NPRM insufficiently addressed First Amendment protections and thus
failed to adequately explain the change in position from the 2020
amendments, the Department notes that the July 2022 NPRM discussed the
First Amendment as part of the Department's explanation for the revised
definition of ``sex-based harassment.'' 87 FR 41414-15. Among other
things, the Department explained that it views the proposed definition
as sufficiently narrow so as not to encroach on any constitutional
rights and emphasized that applying the definition would require
consideration of a respondent's First Amendment rights. An NPRM must
provide ``sufficient factual detail and rationale for the rule to
permit interested parties to comment meaningfully,'' U.S. Telecom Ass'n
v. FCC, 825 F.3d 674, 700 (D.C. Cir. 2016) (internal quotation marks
omitted), and the Department's explanation in the July 2022 NPRM,
including the discussion of the First Amendment, satisfies this
standard.
Regarding commenters' arguments that an administrative agency
should not interpret laws in a manner that
[[Page 33508]]
could cause First Amendment issues and, therefore, the definition of
hostile-environment sex-based harassment exceeds the Department's
statutory authority, there are no such constitutional concerns here
because as explained in this section, the final regulations are
consistent with established case law regarding harassment and the First
Amendment. The Department also notes that agencies are not stripped of
the power to issue regulations merely because those regulations may
intersect with the First Amendment. See, e.g., Cablevision Sys. Corp.
v. FCC, 649 F.3d 695, 709 (D.C. Cir. 2011); Republican Nat'l Comm. v.
Fed. Election Comm'n, 76 F.3d 400, 409 (D.C. Cir. 1996). Here, for
example, these final regulations are both reasonable and consistent
with the relevant case law addressing hostile environment harassment in
the First Amendment context.
Regarding the application of Sec. 106.6(d) to private recipients,
the Department notes that Sec. 106.6(d) applies to all recipients of
Federal financial assistance, including private recipients, and thus,
nothing in these final regulations requires a private recipient to
restrict any rights that would otherwise be protected from government
action by the First Amendment. This is consistent with OCR's
longstanding position in the administrative enforcement of Title IX
that the Title IX regulations ``should not be interpreted in ways that
would lead to the suppression of protected speech on public or private
campuses'' and that ``OCR interprets [the Title IX] regulations
consistent with the requirements of the First Amendment, and all
actions taken by OCR must comport with First Amendment principles.''
2003 First Amendment Dear Colleague Letter. Accordingly, nothing in
Title IX or these final regulations would preempt a State law that
governs speech protected by the First Amendment, including as applied
to a private recipient. However, a recipient's obligation to comply
with Title IX and these final regulations is not obviated or alleviated
by a conflicting State law that governs speech that is not protected by
the First Amendment. For more discussion of the application of the
preemption provision at Sec. 106.6(b), see the discussion of Sec.
106.6(b). Although the Department will not compel private recipients to
restrict conduct that would otherwise be protected under the First
Amendment, the Department declines the commenter's suggestion to revise
Sec. 106.6(d) to require that all recipients abide by the U.S.
Constitution. Requiring non-State actors to comply with the
Constitution would be outside of the Department's authority.
Changes: As explained in the section below on Hostile Environment
Sex-Based Harassment--Subjectively and Objectively Offensive (Sec.
106.2), the Department has revised the definition of ``sex-based
harassment'' to add the word ``offensive'' to the subjective and
objective standard in hostile environment sex-based harassment.
Hostile Environment Sex-Based Harassment--Severe or Pervasive (Sec.
106.2)
Comments: Some commenters supported the severe or pervasive
standard because it is more consistent with Title VII; would allow a
recipient to address conduct that is severe but not pervasive, or vice
versa; and would allow for a more prompt and effective response when a
student experiences a hostile environment. Commenters also asserted
that the definition of ``sexual harassment'' in the 2020 amendments set
too high a bar for when a recipient can address sexual harassment under
Title IX.
One commenter questioned how a recipient would measure whether the
conduct was sufficiently severe or pervasive.
Discussion: The Department appreciates the variety of views
expressed by the commenters regarding the adoption of the severe or
pervasive standard in the definition of hostile environment sex-based
harassment. The Department has determined that the final regulations
support a more uniform approach to hostile environment harassment,
which is a concept embedded in numerous civil rights laws, including
Title VII. See, e.g., Harris, 510 U.S. 17; 29 CFR 1604.11. Although the
final regulations do not simply track prior OCR guidance, the final
regulations do align more closely, as compared with the 2020
amendments, with OCR's longstanding interpretation of Title IX
articulated in prior guidance. See, e.g., 2001 Revised Sexual
Harassment Guidance. They also align with enforcement practice prior to
the 2020 amendments. The final regulations do not set a higher standard
for sex-based harassment than for other forms of harassment, such as
harassment on the basis of race, color, national origin, or disability.
The Department agrees with commenters that the definition of hostile
environment sex-based harassment will allow for a more prompt and
effective response when a student experiences a hostile environment.
The Department acknowledges the commenters' support for the
definition of hostile environment sex-based harassment because it will
address conduct that is severe but not pervasive, and conduct that is
pervasive but not severe. The Department emphasizes, however, that the
severe or pervasive standard is but one element of the definition of
hostile environment sex-based harassment as discussed throughout this
section. The definition of ``sex-based harassment'' in the final
regulations recognizes that isolated comments would generally not meet
the definition of hostile environment sex-based harassment.
Regarding one commenter's question about how a recipient would
measure conduct to determine whether it is sufficiently severe or
pervasive, the Department clarifies that sex-based conduct meets the
``severe or pervasive'' standard of sex-based harassment if it limits
or denies a person's ability to participate in or benefit from the
recipient's education program or activity. See the discussion below for
more detailed explanation of when conduct ``limits or denies'' a
person's ability to participate in or benefit from a recipient's
education program or activity. To emphasize that the severity or
pervasiveness inquiry is necessarily linked to a person's access to an
education program or activity, the Department has replaced
``sufficiently'' with ``so'' in the final regulations.
The applicable regulations, this preamble, and other sources of
hostile environment harassment law all inform how a recipient should
determine whether conduct is severe or pervasive. The final
regulations--particularly in Sec. 106.45, and if applicable Sec.
106.46--set out the requirements for a recipient's gathering and
evaluation of evidence from parties and witnesses, and the standard by
which the persuasiveness of that evidence is to be evaluated. In
addition, and as indicated elsewhere in this preamble, one stray remark
does not satisfy the level of pervasiveness to which the regulations
refer. The Department reaffirms the statement in the July 2022 NPRM
that 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. See 87 FR 41415.
Further, a statement of one's point of view on an issue of debate and
with which another person disagrees, even strongly so, is not the kind
or degree of conduct that implicates the regulations. In contrast, sex-
based conduct that occurs on multiple occasions and is so persistent
that, for example, it limits
[[Page 33509]]
another student's ability to complete assigned coursework at the
student's typical level of performance would potentially constitute the
type of pervasive sex-based conduct the final regulations are intended
to reach. Moreover, because the final regulations draw from settled
components of Title VII sexual harassment law, recipients and others
may consult that field of law for additional guidance as to how courts
have analyzed whether conduct is severe or pervasive.\13\
---------------------------------------------------------------------------
\13\ See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998) (referencing simple teasing, offhand comments, and
isolated incidents as not amounting to discrimination, unless
extremely serious); Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 82 (1998) (``Common sense, and an appropriate sensitivity
to social context, will enable courts and juries to distinguish
between simple teasing or roughhousing among members of the same
sex, and conduct which a reasonable person in the plaintiff's
position would find severely hostile or abusive.''); Harris, 510
U.S. at 21 (referencing situations in which a workplace is permeated
with discriminatory intimidation, ridicule, and insult); Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986). The Department notes
that courts often rely on interpretations of Title VII to inform
interpretations of Title IX. See, e.g., Franklin, 503 U.S. at 75;
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en
banc); 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).
---------------------------------------------------------------------------
The Department disagrees with a commenter's assertion that the
definition of hostile environment sex-based harassment would require a
recipient to track speech because that is the only way to establish
whether speech is severe or pervasive. The Department clarifies that
nothing in the definition of ``sex-based harassment,'' or Sec. Sec.
106.44, 106.45, or 106.46, which apply the definition of ``sex-based
harassment,'' requires a recipient to directly or indirectly track
speech for which no complaint was made or of which the Title IX
Coordinator has not been notified. Contrary to the commenter's
assertion, affirmatively tracking speech or sex-based conduct is not
the only way to determine pervasiveness. Rather, harassment can be
pervasive if it is widespread, openly practiced, or well-known to
students and staff (such as sex-based harassment occurring in the
hallways, graffiti in public areas, or harassment occurring during
recess under a teacher's supervision). See, e.g., 2001 Revised Sexual
Harassment Guidance, at 13-14 & nn.76-78 (citing Katz v. Dole, 709 F.2d
251, 256 (4th Cir. 1983)); 85 FR 30166; Smolsky v. Consol. Rail Corp.,
780 F. Supp. 283, 293 (E.D. Pa. 1991), reconsideration denied, 785 F.
Supp. 71 (E.D. Pa. 1992); Jensen v. Eveleth Taconite Co., 824 F. Supp.
847, 887 (D. Minn. 1993); Cummings v. Walsh Constr. Co., 561 F. Supp.
872, 878 (S.D. Ga. 1983)). Although pervasiveness can also be found if
there is a pattern or practice of harassment, as well as if the
harassment is sustained and nontrivial, see, e.g., Moylan v. Maries
Cnty., 792 F.2d 746, 749-50 (8th Cir. 1986); or part of a continuous
series of events, see, e.g., Williams v. Bd. of Regents of Univ. Sys.
of Ga., 477 F.3d 1282, 1298 (11th Cir. 2007), this in no way requires a
recipient to affirmatively track all speech, but rather to assess a
complaint or notification of allegedly offensive sex-based speech
considering the totality of the known circumstances, including whether
the Title IX Coordinator has received other related complaints or
notifications alleging conduct that reasonably may constitute sex
discrimination. To the extent the commenter objects to a recipient
maintaining records consistent with Sec. 106.8(f)(1) and (2) for
complaints or notifications alleging verbal sex-based harassment, the
Department has determined that a recipient's recordkeeping obligations
for complaints and notifications of speech-based sex-based harassment
should be treated the same as other complaints and notifications of sex
discrimination. Accordingly, the Department is unpersuaded that a
revision of the ``severe or pervasive'' requirement is necessary or
best serves Title IX's mandate that recipients promptly and effectively
address sex discrimination in their education programs or activities.
To the extent commenters raised specific examples of conduct that
may or may not satisfy the definition of hostile environment sex-based
harassment, the Department declines to opine on specific examples
because any such evaluation of the facts must be based on the totality
of circumstances. In any event, further explanation of the content of
the final regulations is provided in the discussions above and below.
Changes: The Department has revised the definition of ``sex-based
harassment'' to state that the conduct must be ``so'' severe or
pervasive that it limits or denies a person's ability to participate in
or benefit from the recipient's education program or activity (i.e., it
creates a hostile environment), rather than ``sufficiently'' severe or
pervasive.
Hostile Environment Sex-Based Harassment--Subjectively and Objectively
Offensive (Sec. 106.2)
Comments: Some commenters objected to the omission of offensiveness
from the definition of hostile environment sex-based harassment,
arguing that it would make students responsible for inoffensive conduct
and could discourage a recipient from using informal approaches such as
restorative justice to address minor conduct issues.
Some commenters asserted that a standard that is both objective and
subjective is necessary to protect students. Other commenters preferred
either the objective standard or the subjective standard, but not both.
Another commenter asserted that combining subjective and objective
components would effectively eliminate the objective component, and one
commenter asked from whose perspective the subjective standard would be
determined.
Some commenters said that the subjective standard violates the
First Amendment and argued that an objective standard is more
protective of free speech. Commenters said the subjective standard
would require employees to police speech; cause a chilling effect; and
potentially compel certain speech. Some commenters said the definition
would create a ``heckler's veto'' because a single statement on a topic
like abortion, sex outside marriage, or sexual orientation could be
offensive to one student and lead to a complaint of sex-based
harassment.
Some commenters said the subjective standard's vagueness would deny
respondents due process, lead to meritless investigations and
inconsistent enforcement across recipients, and favor complainants;
argued that the proposed definition of ``sex-based harassment'' would
discriminate against men; and said that the subjective standard would
force recipients to expend scarce resources on an excessive number of
investigations.
One commenter posited that the subjective standard could be unfair
for complainants because a recipient could find the complainant did not
subjectively perceive the environment to be abusive even if it met the
objective standard. Another commenter was concerned that the subjective
standard gives too much discretion to investigators or decisionmakers
who could be biased.
Discussion: The Department thanks commenters for noting that the
definition of hostile environment sex-based harassment in the proposed
regulations omitted the concept of ``offensiveness.'' The Department
agrees that ``offensiveness'' is a key part of the subjective and
objective standards and is amending the definition of hostile
environment sex-based harassment accordingly. This change also
[[Page 33510]]
ameliorates a commenter's concern about a recipient's discretion to use
informal mechanisms to address minor misconduct that does not rise to
the level of sex-based harassment.
The Department acknowledges the commenters' support for the
inclusion of both a subjective and objective standard in the definition
of hostile environment sex-based harassment. Requiring unwelcome sex-
based conduct to be evaluated subjectively and objectively is
consistent with the Department's analysis in the preamble to the 2020
amendments. 85 FR 30167. This is also consistent with Supreme Court
case law, which has employed both objective standards--see, e.g.,
Davis, 526 U.S. at 650 (conduct must be ``objectively offensive'' to
trigger liability for money damages); 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))--and
subjective standards--see Harris, 510 U.S. at 21-22 (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,'' even if a
reasonable person would find the environment hostile or abusive)--in
determining whether a hostile environment existed.
The Department appreciates the comments opposed to either the
subjective or objective standard, but the Department continues to take
the position that unwelcome sex-based conduct must be evaluated both
subjectively and objectively. The Department also does not agree with
the commenter's assertion that inclusion of a subjective element in a
definition would eliminate the objective element. As discussed in the
July 2022 NPRM and elsewhere in this preamble, and as illustrated by
courts in other contexts, the two elements are distinct, and a
decisionmaker must find sufficient evidence to satisfy each element
under the applicable standard before determining that alleged conduct
constitutes sex-based harassment. See 87 FR 41414. The Department
maintains, however, consistent with the preamble to the 2020 amendments
and the July 2022 NPRM, that the objective standard is assessed from
the perspective of a reasonable person in the complainant's position.
85 FR 30167; 87 FR 41414.
The Department agrees that the First Amendment provides clear
protection for individual expressions of opinion, including expressions
of opinions that are unpopular. As discussed in the July 2022 NPRM and
elsewhere in this preamble, the First Amendment and academic freedom
must be considered if issues of speech or expression are involved. See
87 FR 41415. The Department disagrees with commenters that subjectively
offensive speech, in itself, would constitute sex-based harassment
under Title IX, given the inclusion of an objectively offensive element
in the definition. To the extent the other comments raise concerns
under the First Amendment, those comments are addressed in the section
above dedicated to First Amendment Considerations.
The Department disagrees that the inclusion of the subjective
standard would be unfair to respondents, including by denying
respondents due process, leading to meritless investigations, or
leading to inconsistent enforcement across recipients. The Department
disagrees that the final regulations discriminate against men and notes
that the final regulations protect all students, employees, and other
individuals from discrimination based on sex--including men, and ensure
that all respondents are treated equitably, regardless of their sex.
Specifically, recipient's obligations under Sec. 106.45, and if
applicable Sec. 106.46, ensure that respondents' due process rights
are respected, that complainants and respondents are treated equitably,
and that investigations are evidence-based whenever a complaint is
initiated. In addition, a subjective standard is commonly used,
including under the 2020 amendments and prior guidance, to determine
whether conduct is unwelcome. 85 FR 30167 (``whether harassment is
actionable turns on both subjectivity (i.e., whether the conduct is
unwelcome, according to the complainant) and objectivity (i.e.,
`objectively offensive')''); 2001 Revised Sexual Harassment Guidance,
at 5 (``OCR considers the conduct from both a subjective and objective
perspective.'').
The Department disagrees that the subjective standard will cause a
recipient to automatically credit a complainant's allegations or lead
to heightened scrutiny that would force a recipient to expend scarce
resources. Subjective offensiveness must be supported by evidence, and
subjective offensiveness alone would not support a finding or
discipline. As discussed previously, the definition of hostile
environment sex-based harassment requires an evaluation, based on the
totality of circumstances, of several key elements. Regardless, the
inclusion of the objective standard would satisfy commenters' concerns
that the subjective standard working alone may implicate these
concerns.
The Department disagrees with the contention that the subjective
standard could be unfair to complainants because a recipient could find
that sex-based harassment did not occur even when objective factors
indicate that it did. Whether the complainant subjectively found the
conduct offensive or abusive is commonly understood as an important
element of hostile environment harassment. See Harris, 510 U.S. at 21-
22 (explaining that, even if a ``reasonable person'' might view the
conduct as constituting harassment, no Title VII violation occurs ``if
the victim does not subjectively perceive the environment to be
abusive'' because ``the conduct has not actually altered the conditions
of the victim's employment.'').
With respect to the comment that recipient employees could act with
bias, the final regulations specifically require Title IX Coordinators,
investigators, and decisionmakers to be trained on how to serve
impartially, including by avoiding prejudgment of the facts at issue,
conflicts of interest, and bias, Sec. 106.8(d)(2); and to act without
bias toward any specific party or toward complainants or respondents in
general, Sec. 106.45(b)(2). They also require postsecondary
institutions, in cases involving a student party, to offer the parties
an appeal on the basis that 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. Sec. 106.46(i)(1)(iii). See
also the discussions of Sec. Sec. 106.45(b)(2), 106.46(i)(1)(iii). A
respondent who believes a recipient violated its obligations under the
final regulations may also file a complaint with OCR.
Finally, the Department appreciates the commenter's questions
regarding from whose perspective the subjective standard would be
determined. The final regulations' reference to a subjective
perspective in the definition of hostile environment sex-based
harassment refers to the complainant. The complainant's perspective is
likewise part of the Title VII standard. See Harris, 510 U.S. at 21
(connecting a Title VII violation to whether, in part, the complainant
subjectively perceives the environment to be abusive). Evidence
regarding whether sex-based conduct meets the subjective element of the
definition could include, but is not
[[Page 33511]]
limited to, the complainant's own statements about the alleged conduct
or other sources that could establish the complainant's experience of
the alleged conduct.
Changes: The Department has revised the definition of ``sex-based
harassment'' to add the word ``offensive'' to the subjective and
objective standard for establishing hostile environment sex-based
harassment.
Hostile Environment Sex-Based Harassment--Limits or Denies (Sec.
106.2)
Comments: Some commenters supported the proposed definition of
hostile environment sex-based harassment but were concerned that it
could still create burdens for complainants by requiring a recipient to
determine how the complainant's education is limited by the harassment.
For example, these commenters said that a recipient could interpret
this as requiring a complainant to show that they received lower
grades.
A group of commenters, relying on Davis, noted that the text of
Title IX only prohibits discrimination that denies access to the
recipient's education program or activity and does not prohibit conduct
that does not rise to that level of severity. One commenter said that
the Department could not justify changing ``effectively denies'' to
``denies or limits'' because the Supreme Court in Davis concluded that
Congress was concerned with ensuring equal access and not eradicating
every limitation on access.
Some commenters said that the term ``limits'' is vague and overly
broad. Commenters expressed concern that the use of the term ``limits''
would threaten protected speech, cover conduct that detracts in any way
from another student's enjoyment of the recipient's education program,
require a recipient to primarily consider the conduct from the
complainant's perspective, and expose postsecondary institutions to
lawsuits from students alleging they were expelled on arbitrary
grounds.
Discussion: In the preamble to the 2020 amendments, the Department
stated that the ``effectively denies a person access'' element of the
definition of sexual harassment ``does not act as a more stringent
element than the `interferes with or limits a student's ability to
participate in or benefit from the school's programs' language found in
Department guidance.'' 85 FR 30152. The Department explained in the
preamble to the 2020 amendments that this standard does not only apply
when a complainant was ``entirely, physically excluded from educational
opportunities,'' nor does it require showing that a complainant
``dropped out of school, failed a class, had a panic attack, or
otherwise reached a `breaking point' '' because ``individuals react to
sexual harassment in a wide variety of ways.'' 85 FR 30169-70. As
explained in the July 2022 NPRM, the Department believes that the
phrase ``limits or denies'' more accurately captures the full scope of
Title IX's nondiscrimination mandate. See 87 FR 41414. We also disagree
that Davis requires the Department to restrict the definition of
hostile environment sex-based harassment only to conduct that denies
access to a recipient's education program or activity. As described in
the July 2022 NPRM and elsewhere in this preamble, the holding in Davis
does not limit the Department's authority to regulate under Title IX.
See id. In addition, the Title IX statute states that no person 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. If Title IX
only covered exclusion from participation or denial of access, there
would have been no reason for Congress to add ``be denied the benefits
of.'' A limitation on equal access constitutes a denial of benefits.
See id.
The Department appreciates the commenters' concern that the
proposed definition could burden complainants by requiring a recipient
to determine how the complainant's education is limited or impacted by
the harassment; however, the Department maintains that the definition
of hostile environment sex-based harassment appropriately requires
evidence of the impact of the alleged conduct on the complainant, as
Title IX requires. The Department reiterates that grades are not the
only evidence of a student's ability to participate in and access the
benefits of a recipient's education program or activity, and the
Department reaffirms that the definition of hostile environment sex-
based harassment does not require a complainant to demonstrate any
particular harm, such as reduced grades or missed classes. Put another
way, a complainant must demonstrate some impact on their ability to
participate or benefit from the education program or activity, but the
definition does not specify any particular limits or denials. Rather,
as with all complaints, the recipient's evaluation of whether sex-based
harassment occurred must be based on all of the relevant and not
otherwise impermissible evidence.
The Department disagrees with commenters' views that the term
``limits'' is vague or overbroad, or that it would threaten protected
speech because speech that is subjectively or objectively inoffensive
would not satisfy that element of hostile environment sex-based
harassment. For further discussion see the sections above on Hostile
Environment Sex-Based Harassment--First Amendment Considerations (Sec.
106.2), Hostile Environment Sex-Based Harassment--Subjectively and
Objectively Offensive (Sec. 106.2), and Sex-Based Harassment--
Vagueness and Overbreadth (Sec. 106.2).
The final regulations contain a number of provisions that prevent
the arbitrary expulsion of students, including the grievance procedure
requirements in Sec. 106.45, and as applicable Sec. 106.46. Whether
conduct limits or denies a person's ability to participate in or
benefit from the recipient's education program or activity is a fact-
based inquiry that requires consideration of all relevant and not
otherwise impermissible evidence. In response to the commenter who
suggested that the definition of hostile environment sex-based
harassment will deem a student who acts without animus to have created
a hostile environment, the Department notes that consistent with the
Supreme Court's analysis in Davis, as well as the preamble to the 2020
amendments and in prior OCR guidance, the Department does not
understand animus to be a required element of a harassment claim.
Instead, the analysis focuses on whether the harassment limits or
denies a person's ability to participate in or benefit from the
recipient's education program or activity based on sex. See 85 FR
30167; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague
Letter: Harassment and Bullying, at 2 (Oct. 26, 2010) (2010 Harassment
and Bullying Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
Upon its own review of the proposed regulations, the Department has
decided to change the order of the words ``denies'' and ``limits'' so
that ``limits'' comes first for clarity. This is a non-substantive
change and does not indicate a change in the meaning of the standards
discussed herein.
Changes: The Department has revised the definition of ``sex-based
harassment'' to reverse the order of ``denies'' and ``limits.''
[[Page 33512]]
Hostile Environment Sex-Based Harassment--Factors To Be Considered
(Sec. 106.2)
General Support and Opposition
Comments: Some commenters supported the inclusion of factors to be
considered in determining whether hostile environment sex-based
harassment occurred, and others opposed them or requested
modifications.
Some commenters questioned the basis for the factors, found them
confusing or unworkable, asserted that the examples in the preamble to
the July 2022 NPRM did not align with courts' analyses, and asked how
the factors might result in similar or different findings than under
Title VII.
Some commenters said that it was not clear what conduct would
constitute hostile environment sex-based harassment under the factors
and objected to a non-exhaustive list, noting that additional factors
would be unknown to students and employees. Some commenters said
elementary schools need more clarity to distinguish ``annoying'' and
``immature'' conduct from conduct that constitutes hostile environment
sex-based harassment.
One commenter objected to the Department's inclusion of examples of
hostile environment sex-based harassment in the July 2022 NPRM, arguing
that some examples, such as those involving speech or a single incident
of harassment, could contradict Davis.
Discussion: The factors listed in the definition of hostile
environment sex-based harassment are similar to those discussed in the
preamble to the 2020 amendments, 85 FR 30170, and prior guidance based
on case law, see 2001 Revised Sexual Harassment Guidance, at 5-7 and
cases cited (discussing the following factors: the degree to which the
conduct affected one or more students' education; the type, frequency,
and duration of the conduct; the identity of and relationship between
the alleged harasser and the subject or subjects of the harassment; the
number of individuals involved; the age and sex of the alleged harasser
and the subject or subjects of the harassment; the size of the school,
location of the incidents, and context in which they occurred; other
incidents at the school; and incidents of gender-based, but nonsexual
harassment).
The Department also notes that the factors are similar to those
that courts and agencies have used in evaluating a hostile environment
in the employment context under Title VII. See, e.g., 29 CFR 1604.11
(``In determining whether alleged conduct constitutes sexual
harassment, the Commission will look at the record as a whole and at
the totality of the circumstances, such as the nature of the sexual
advances and the context in which the alleged incidents occurred. The
determination of the legality of a particular action will be made from
the facts, on a case by case basis.''). See also U.S. Equal Emp.
Opportunity Comm'n, Enforcement Guidance on National Origin
Discrimination (Nov. 18, 2016), https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination#_Toc451518815
(``Relevant questions in evaluating whether national origin harassment
rises to the level of creating a hostile work environment may include
any of the following: whether the conduct was hostile/offensive;
whether the conduct was physically threatening or intimidating; how
frequently the conduct was repeated; or the context in which the
harassment occurred.'').
The Department acknowledges, as referenced in the comments, that
the factors listed in the definition of hostile environment sex-based
harassment are not identical to the factors the EEOC considers, but the
EEOC similarly examines the totality of the circumstances, including
the nature, frequency, and context of the conduct. As discussed in the
July 2022 NPRM, the preamble to the 2020 amendments, and elsewhere in
this preamble, although there are some differences between the
employment and education contexts, interpretations of Title VII
appropriately inform interpretations of Title IX. See 87 FR 41415; 85
FR 30199. The factors the Department has included in the final
regulations, like those used by courts and other agencies, reflect an
effort to consider the ``constellation of surrounding circumstances,
expectations, and relationships,'' Oncale, 523 U.S. at 82, that can
inform whether conduct creates a hostile environment in a particular
context.
The Department disagrees that the factors listed in the definition
of hostile environment sex-based harassment or examples cited in the
July 2022 NPRM are vague. The examples demonstrate the variety of
contexts in which harassment may arise. Although the list of factors
included in the final regulations is not exhaustive and there may be
other considerations in examining the totality of the circumstances,
the definition of hostile environment sex-based harassment is
sufficiently broad to capture the contexts in which harassment can
occur and sufficiently specific and consistent with precedent to
provide appropriate notice to the public as to how the Department
evaluates sex-based harassment. The Department declines to limit the
factors to be considered to those listed in the definition of hostile
environment sex-based harassment because of the necessarily fact-
specific nature of the totality of the circumstances analysis.
With respect to the commenters' request for more clarity regarding
how to draw the line between ``annoying'' and ``immature'' conduct and
conduct that constitutes sex-based harassment, the Department notes
that the legal standard is not whether or not conduct is subjectively
``annoying'' or ``immature.'' The standard for hostile environment sex-
based harassment is whether or not the totality of the circumstances
demonstrates conduct that is unwelcome sex-based conduct, subjectively
and objectively offensive, and so pervasive that it limits or denies a
person's ability to participate in or benefit from the recipient's
education program or activity.
In response to the commenter who said that examples of harassment
could contradict Davis, the Department notes that any examples the
Department provides are for illustrative purposes. In all cases, the
totality of the circumstances must be considered in connection with the
definition of hostile environment sex-based harassment. The Department
also notes that, as explained above, the standard for administrative
enforcement need not be identical to the standard for holding a
recipient liable for monetary damages under Davis. For additional
discussion see the section above on Hostile Environment Sex-Based
Harassment--the Davis Standard (Sec. 106.2).
Consideration of the factors listed in the definition of hostile
environment sex-based harassment is one aspect of ensuring that the
determination is made based on the totality of the circumstances. The
July 2022 NPRM also made this point, explaining that the Department did
not offer a definitive assessment of the examples not because the
examples were insufficient but because ``a fuller, fact-specific
analysis would be required'' to reach a final determination. 87 FR
41416; see also Davis, 526 U.S. at 651 (``Whether gender-orientated
conduct rises to the level of actionable `harassment' thus `depends on
a constellation of surrounding circumstances, expectations, and
relationships' '' (quoting Oncale, 523 U.S. at 82) (internal quotation
marks omitted)). The Department similarly declines to opine on specific
examples presented in the
[[Page 33513]]
comments because a fuller, fact-specific analysis is required.
Changes: None.
The First Factor--Degree of Impact
Comments: One commenter asked the Department to add ``participate
in'' to the first hostile environment factor, to cover the degree to
which the conduct affected the complainant's ability to access or
participate in the recipient's education program or activity.
Another commenter said the Department should not limit the first
hostile environment factor to the complainant's educational access
because a recipient must also consider the impact on campus community
members who are directly or indirectly experiencing a hostile
environment.
One commenter asserted that a recipient should not evaluate the
degree of impact on a complainant based on its idea of a ``perfect
victim,'' citing 85 FR 30170.
Discussion: The Department declines to add ``participate in'' to
the first hostile environment factor because ``access'' in this context
includes the ability to participate in or benefit from the recipient's
education program or activity, consistent with use of the term in the
current regulations and in case law. See, e.g., Davis, 526 U.S. at 631
(describing Title IX's prohibition on being ``excluded from
participation in'' or ``denied the benefits of'' a recipient's
education program or activity as denial of equal ``access'').
The Department declines to modify the first hostile environment
factor to remove the reference to the complainant. The Department does
not think that the factor, as described, will lead a recipient to
ignore the impact of conduct on campus community members. As discussed
elsewhere in this preamble, Title IX protects individuals who
experience sex-based harassment, even if they are not the intended
target, and the inclusion of this factor does not prevent a recipient
from evaluating whether a hostile environment has been created for
others. However, whether a hostile environment has been created for a
particular complainant requires an individualized and fact-specific
analysis of the effect of the alleged conduct on that complainant. For
this reason, the first factor appropriately examines the degree to
which the conduct affected the complainant's ability to access the
recipient's education program or activity. Because a recipient has an
obligation to operate its education program or activity free from sex
discrimination as set forth in the final regulations, the definition
does not limit how many people may experience a hostile environment
related to conduct that constitutes sex-based harassment or how many
people may make a complaint. Even in the absence of an additional
complaint, the Title IX regulations permit the Title IX Coordinator to
initiate grievance procedures after considering factors such as the
risk of additional acts of sex discrimination and information
suggesting a pattern, ongoing sex discrimination, or sex discrimination
alleged to have impacted multiple individuals. See Sec.
106.44(f)(1)(v)(A)(6).
The Department takes this opportunity to affirm the statement in
the preamble to the 2020 amendments that ``equal access'' ``neither
requires nor permits school officials to impose notions of what a
`perfect victim' does or says, nor may a recipient refuse to respond to
sexual harassment because a complainant is `high-functioning' or not
showing particular symptoms following a sexual harassment incident.
School officials turning away a complainant by deciding the complainant
was `not traumatized enough' would be impermissible.'' 85 FR 30170.
Changes: None.
The Second Factor--Type, Frequency, and Duration
Comments: One commenter said that the second factor regarding
``type, frequency, and duration'' is unnecessary because it is covered
by the ``severe or pervasive'' language in the proposed definition.
Some commenters objected to the July 2022 NPRM's assertion that
asking someone out on a date or sending them flowers on one occasion
``generally'' would not create a hostile environment. Commenters argued
that such conduct would clearly not create a hostile environment and
cited case law to support this position.
Discussion: The Department declines to remove or modify the second
factor. The Department acknowledges that type, frequency, and duration
may overlap with the meanings of ``severe'' and ``pervasive'' in some
respects, but a reference to type, frequency, and duration will help
guide decisionmakers in their evaluation of the severity and
pervasiveness of the conduct. In a case involving multiple incidents,
for example, this factor would clarify the need for a decisionmaker to
consider both the frequency of the incidents and the duration of each
incident.
With respect to the example provided in the July 2022 NPRM of a
single request for a date or a single gift of flowers from one student
to another, the Department intended that example to demonstrate the
type of conduct that may be sex-based but would not be pervasive. The
Department declines to comment further on specific examples or factual
scenarios prior to conducting an investigation and evaluating the
relevant facts and circumstances.
Changes: None.
The Third Factor--Ages, Roles, Previous Interactions, Other Factors
Comments: One commenter asked the Department to change ``alleged
unwelcome conduct'' to ``alleged sex-based harassment'' in the third
factor for consistency. One commenter noted that the third factor
regarding the parties' ages and roles is less applicable at the
postsecondary level but may be a consideration at the elementary school
and secondary school level. One commenter asked the Department to add
language regarding the parties' developmental levels to clarify how
recipients' Title IX obligations intersect with their obligations to
students with disabilities.
Discussion: The Department declines to change ``alleged unwelcome
conduct'' to ``alleged sex-based harassment'' in the third factor
because the third factor appropriately focuses on the unwelcome conduct
that is in the introductory text of the definition of hostile
environment sex-based harassment. Based upon the Department's internal
review for consistency with the rest of the provision, which does not
use the term ``alleged'' and does not repeat ``unwelcome'' before
``conduct'' and to avoid redundancy since the introductory language
specifies that the conduct must be unwelcome, the Department determined
that the terms ``alleged'' and ``unwelcome'' before ``conduct'' should
be removed.
The Department acknowledges the comment that reference to the
parties' ages and roles in the third factor is less applicable at the
postsecondary level than in the elementary school and secondary school
level, but notes that some students in postsecondary education are
under 18 years old, and the relative power dynamics and ages of the
parties in the postsecondary context could still be a factor,
particularly if the conduct involves a student and employee. With
regard to the parties' developmental levels, the Department notes that
the third factor includes ``other factors about each party that may be
relevant to evaluating the effects of the alleged unwelcome conduct,''
which would include developmental levels. The Department is supportive
of recipients' consideration of how Title IX obligations intersect with
their obligations to students with disabilities,
[[Page 33514]]
but does not believe it is necessary to add language to the regulatory
text.
Changes: The Department has deleted the terms ``alleged'' and
``unwelcome'' from the definition of ``sex-based harassment'' in the
third consideration of whether a hostile environment has been created.
The Fourth Factor--Location and Context
Comments: One commenter said that the fourth factor is more
applicable to liability for monetary damages than to administrative
enforcement, noting that the proposed regulations lay out when behavior
by a respondent warrants a response by the recipient without further
differentiating respondents. Another commenter was concerned that the
fourth factor would be considered without recognizing that Davis only
imposed liability on recipients for failing to address conduct ``where
the `recipient exercises substantial control over both the harasser and
the context in which the known harassment occurs.' '' 526 U.S. at 645.
Discussion: Location and context are important to consider in
determining whether a hostile environment has been created because they
provide information that is relevant to each of the hostile environment
elements: unwelcomeness, objective and subjective offensiveness, and
severity and pervasiveness and effect on a complainant's ability to
access or benefit from the education program or activity. For example,
harassing conduct on a school bus may be more intimidating than on
school grounds because of the confined space. Similarly, harassing
conduct in a personal and secluded area, such as a dorm room, can be
more threatening than the same conduct in a public area. On the other
hand, harassing conduct in public can be more humiliating. Each
instance of alleged harassing conduct must take into account the
totality of the circumstances, including consideration of the location
and context.
After considering the comments, the Department is persuaded that
the reference to ``control the recipient has over the respondent'' in
the fourth factor created confusion, by mistakenly giving the
impression that the substantial control language used in Davis to
determine whether a recipient may be held liable in damages for a
respondent's conduct, is the same as the hostile environment analysis
that these factors are focused on. Because of this confusion, and
because ``location and context'' fully account for the considerations
intended to be covered by this factor, the Department has removed that
language from the hostile environment factors in the final definition
of hostile environment sex-based harassment. For a discussion of the
relevance of a recipient's control over a respondent, see discussion of
Sec. 106.11.
Changes: The Department removed the language regarding ``control
the recipient has over the respondent'' from the definition of ``sex-
based harassment'' in the fourth consideration of whether a hostile
environment has been created.
The Fifth Factor--Other Sex-Based Harassment
Comments: One commenter expressed concern about considering other
sex-based harassment in the recipient's education program or activity
because they said complainants would use this consideration to justify
making Title IX complaints over isolated, fleeting, mild, or
inoffensive conduct. One commenter said that even though other sex-
based harassment may prompt a Title IX Coordinator to address broader
concerns, it does not influence whether a hostile environment was
created for the complainant. Another commenter asked the Department to
clarify when the conduct of multiple individuals toward the same
complainant would constitute enough ``other sex-based harassment in the
recipient's education program or activity'' to amount to hostile
environment sex-based harassment, but the conduct by one individual
alone would not.
Discussion: With respect to the fifth factor, the Department notes
that the commenters either mischaracterized or misunderstood the
requirement that a recipient undertake a fact-specific inquiry that
includes consideration of a variety of factors, including the
occurrence of other sex-based harassment. As the regulatory text
directs, the consideration of the factors must be fact-specific,
meaning that the determination whether other sex-based harassment in
the recipient's education program or activity is relevant will depend
on specific facts. In the July 2022 NPRM, the Department provided the
example of a student who reports that his peers repeatedly denigrated
him as ``girly'' over a period of weeks. 87 FR 41417. In this example,
if one peer made a one-off remark calling the student ``girly,'' that
alone may not be severe or pervasive enough to create a hostile
environment, but if multiple peers repeatedly call the student
``girly,'' then that same treatment may create a hostile environment
for that student. Similarly, if one student at a postsecondary
institution made a derogatory comment to a pregnant student based on
her pregnancy, that alone may not be sufficient to create a hostile
environment, but if multiple people make similar comments to the same
student based on pregnancy, that may create a hostile environment for
the student. The Department notes that, when the elements of sex-based
hostile environment are satisfied for an affected student, a recipient
has an obligation to address that hostile environment, even if a
particular respondent's conduct does not justify discipline. For
example, in response to a hostile environment created by a series of
incidents by different respondents, a recipient may offer supportive
measures to the affected student or provide training for the broader
school community.
The Department agrees that other sex-based harassment may prompt a
Title IX Coordinator to address broader concerns. The Department also
clarifies that a respondent's past sex-based harassment of people other
than the complainant would not be part of the analysis of whether
current sex-based harassment by the respondent created a hostile
environment for the complainant. However, as explained in the
discussion of Sec. 106.45(b)(7)(iii), such pattern evidence may be
permissible for use in Title IX grievance procedures, as the recipient
must objectively evaluate pattern evidence to the extent it is
relevant, i.e., whether it is related to the allegations of sex-based
harassment under investigation and may aid a decisionmaker in
determining whether the alleged sex-based harassment occurred.
Changes: None.
Hostile Environment Sex-Based Harassment--Online Harassment (Sec.
106.2)
Comments: Some commenters were concerned that the proposed
regulations would obligate a recipient to address sex-based harassment
among students that takes place on social media or other online
platforms, such as an online comment seen by an employee that is posted
by a student from home. These commenters were unsure how a recipient
would know if such activity created a hostile environment in an
education program or activity. Citing Mahanoy, 141 S. Ct. at 2046,
commenters noted that the Supreme Court has held that ``the leeway the
First Amendment grants to schools to control speech is `diminished'
when it comes to off-campus speech'' because off-campus speech is
generally the responsibility of parents, not schools. In light of this,
a group of commenters argued that elementary and secondary school
[[Page 33515]]
recipients would not be able to enforce the proposed regulations
against off-campus speech without violating the First Amendment, and
commenters expressed concern about chilling online debate among
students and employees when they are in their own homes.
Discussion: When a recipient has information about sex-based
harassment among its students that took place online and created a
hostile environment in the recipient's education program or activity,
the recipient has an obligation to address that hostile environment. As
explained in the July 2022 NPRM, the Department does not expect a
recipient to follow the online activity of its students outside of the
recipient's education program or activity. 87 FR 41440. The Department
notes that neither the proposed nor final regulations contain any
separate requirements related to online harassment and abuse. Instead,
a recipient's obligation is to address all forms of sex discrimination,
including sex-based harassment that occurs within the recipient's
education program or activity, whether the conduct takes place online,
in person, or both. Online harassment can include, but is not limited
to, unwelcome conduct on social media platforms such as sex-based
derogatory name-calling, the nonconsensual distribution of intimate
images (including authentic images and images that have been altered or
generated by artificial intelligence (AI) technologies), cyberstalking,
sending sex-based pictures or cartoons, and other sex-based conduct
that, based on the totality of the circumstances, is subjectively and
objectively offensive and so severe or pervasive that it limits or
denies a person's ability to participate in or benefit from the
recipient's education program or activity. A recipient must evaluate
online conduct with the same factors that are used to determine whether
in-person conduct creates a hostile environment. If an employee has
information about sex-based harassment among its students that took
place online, such as the nonconsensual sharing of intimate images, and
that created a hostile environment in the recipient's education program
or activity, the recipient has an obligation to address the conduct. 87
FR 41440; see also the discussion of Sec. 106.11. The Department again
notes, as stated above and in the July 2022 NPRM, that recipients are
not expected to affirmatively monitor students' online activity. See 87
FR 41440.
With respect to the First Amendment and online speech, the
Department understands that some commenters were concerned that the
First Amendment may limit the ability of elementary schools and
secondary schools to prevent hostile environments by disciplining
students for online harassing conduct. The Department has concluded,
however, that these schools retain sufficient authority to do so
without running afoul of the First Amendment. First, the Supreme
Court's opinion in Mahanoy suggests that much student online speech in
the school context would be subject to school discipline. The Court
observed that it had previously ``stressed'' that when elementary
schools and secondary schools act in loco parentis, they have a greater
interest in regulating student speech. 141 S. Ct. at 2045-46. And as
Justice Alito explained in concurrence, much online speech will likely
fall into this category, including ``online instruction at home,''
``remote learning,'' ``participation in other online school
activities,'' and--to the extent they involve schoolwork--
``communications to school email accounts or phones'' and speech ``on a
school's website.'' Id. at 2054 & n.16 (Alito, J., concurring). All of
these school-related activities would likely be part of the education
program or activity of the recipient, see discussion of Sec. 106.11,
and, as such, these final regulations would apply.
Second, Mahanoy recognizes elementary schools' and secondary
schools' authority to regulate online speech to address sex-based
harassment, even when that speech occurs outside school-related
activities. The majority opinion observed that ``severe bullying or
harassment targeting particular individuals'' ``may call for school
regulation,'' 141 S. Ct. at 2045, and in considering the competing
interests of the student and the school in the case before it, the
majority opinion specifically noted that the speech in question ``did
not . . . target any member of the school community,'' id. at 2047. The
concurrence also agreed that elementary schools and secondary ``schools
must be able to prohibit threatening and harassing speech.'' Id. at
2052 (Alito, J., concurring). Together, the opinions suggest speech
targeting particular individuals may be regulated in certain
circumstances. Moreover, in the time since Mahanoy was decided, lower
courts have continued to recognize that elementary schools and
secondary schools retain authority to discipline students for certain
online, off-campus harassing speech not involving schoolwork or not
part of a school-sponsored activity. See, e.g., Kutchinski ex rel. H.K.
v. Freeland Cmty. Sch. Dist., 69 F.4th 350, 358 (6th Cir. 2023) (off-
campus Instagram posts that constituted ``serious or severe
harassment'' could be regulated as long as the student ``bore some
responsibility for the speech and the speech substantially disrupted
classwork (or [the school] reasonably believed the speech would disrupt
classwork)''); Chen Through Chen v. Albany Unified Sch. Dist., 56 F.4th
708, 711 (9th Cir. 2022) (school ``properly disciplined'' two students
for ``off-campus social media posts'' that ``amounted to severe
bullying or harassment targeting particular classmates'' (internal
quotation marks omitted)), cert. denied sub nom. Epple v. Albany
Unified Sch. Dist., 143 S. Ct. 2641 (2023). The Sixth Circuit in
Kutchinski recognized that elementary schools and secondary schools
receive ``a high degree of deference in the exercise of their
professional judgment'' regarding student discipline. 69 F.4th at 360.
And the Ninth Circuit in Chen specifically observed that, in
considering an elementary school's or secondary school's interest in
imposing discipline, the school's exposure ``to potential liability on
the theory that it had `failed to respond adequately' to a . . .
hostile environment'' is relevant. 56 F.4th at 722; see also id. at 718
(noting that conduct need not be `` `directed at the complainant in
order to create a hostile educational environment' ''). The Department
accordingly concludes that elementary schools and secondary schools
have sufficient authority to address conduct that creates a hostile
environment even when that conduct occurs online and outside of a
specific school activity. See 87 FR 41440 (explaining that, when an
employee has information about sex-based harassment among its students
that took place online and created a hostile environment in the
recipient's education program or activity, the recipient has an
obligation to address that hostile environment).
Changes: None.
Hostile Environment Sex-Based Harassment--Sex Stereotyping and Gender
Identity (Sec. 106.2)
Comments: Some commenters supported the proposed prohibition on
harassment based on sex stereotypes and gender identity, arguing that
harassment based on sex stereotypes can deprive students of equal
access to educational opportunities, including by adversely affecting
their academic performance. Commenters also noted that courts have
recognized that such harassment can violate Title IX and other sex
discrimination laws. Some
[[Page 33516]]
commenters asserted that harassment based on sex stereotypes could
include statements like ``girls don't belong in school'' or ``girls
should spend less time advancing in athletics and more time learning
home economics.''
Other commenters urged the Department to clarify that misgendering
is a form of sex-based harassment that can create a hostile
environment, especially for gender-nonconforming and LGBTQI+ students.
One commenter noted that the EEOC has recognized that misgendering can
violate Title VII.
Other commenters argued that using names and pronouns consistent
with an individual's sex assigned at birth should not be considered
harassment based on sex stereotypes. Some commenters argued that
prohibiting misgendering as a form of harassment could lead to
compelled speech in violation of the First Amendment and could be used
to target people with unpopular viewpoints, citing Meriwether v.
Hartop, 992 F.3d 492 (6th Cir. 2021).
One commenter suggested that the Department summarize a recent
resolution letter finding that a school district violated Title IX when
it failed to effectively respond to misgendering of a student.
Discussion: The Department appreciates commenters' support for
coverage of harassment based on sex stereotypes and gender identity.
The Department has long recognized, consistent with the text and
purpose of the statute and courts' interpretations, that Title IX's
prohibition on sex discrimination encompasses harassment based on sex
stereotypes. See, e.g., 2001 Revised Sexual Harassment Guidance, at 3
(noting that ``acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex or sex-stereotyping [is] a form
of sex discrimination to which a school must respond, if it rises to a
level that denies or limits a student's ability to participate in or
benefit from the educational program'') & nn.17-19 (citing cases); 85
FR 30179 (``sexual harassment . . . may consist of unwelcome conduct
based on sex or sex stereotyping'').
The Department agrees with commenters that conduct directed at a
student's nonconformity with stereotypical notions of how boys or girls
are expected to act and appear or that seeks to restrict students from
participating in activities that are not stereotypically associated
with the students' sex could constitute sex-based harassment that
creates a hostile environment. See, e.g., Seiwert v. Spencer-Owen Cmty.
Sch. Corp., 497 F. Supp. 2d 942, 953 (S.D. Ind. 2007) (finding
plaintiff stated Title IX claim when he alleged harassment for ``acting
in a manner that did not adhere to the traditional male stereotypes'');
Theno v. Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952,
972 (D. Kan. 2005) (finding plaintiff stated Title IX claim when peers
engaged in teasing, name-calling and crude sexual gestures designed to
``disparage his perceived lack of masculinity''); Lipsett v. Univ. of
P.R., 864 F.2d 881, 903-05 (1st Cir. 1988) (woman participating in a
surgical residency program was subjected to hostile environment sexual
harassment based on evidence of general antagonism toward women,
including statements that women should not be in the program, and
assignment of menial tasks, combined with overt sexual harassment);
Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1092 (D.
Minn. 2000) (finding plaintiff stated Title IX claim when peers
harassed him for ``failure to meet masculine stereotypes,'' including
by calling him ``girl'' and using a feminized version of his name).
Similarly, unwelcome conduct based on gender identity can create a
hostile environment when it otherwise satisfies the definition of sex-
based harassment. See, e.g., U.S. Equal Emp. Opportunity Comm'n, Sexual
Orientation and Gender Identity (SOGI) Discrimination, https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination
(last visited Mar. 12, 2024) (harassment based on gender identity can
create a hostile environment in the workplace). Courts have also
recognized that policies that prevent transgender students from
participating in school consistent with their gender identity can harm
those students. Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d
518, 523 (3d Cir. 2018) (detailing the harms exclusionary school
policies have on transgender students).
Sex-based harassment, including harassment predicated on sex
stereotyping or gender identity, is covered by Title IX if it is sex-
based, unwelcome, subjectively and objectively offensive, and
sufficiently severe or pervasive to limit or deny a student's ability
to participate in or benefit from a recipient's education program or
activity (i.e., creates a hostile environment). Thus, harassing a
student--including acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on the student's nonconformity with
stereotypical notions of masculinity and femininity or gender
identity--can constitute discrimination on the basis of sex under Title
IX in certain circumstances. Recipients have a responsibility to
protect students against sex-based harassment. OCR will continue to
address complaints of harassment based on sex stereotypes and gender
identity, consistent with OCR's jurisdiction under Title IX and the
final regulations.
Many commenters, as highlighted above, believe that misgendering is
one form of sex-based harassment. As discussed throughout this
preamble, whether verbal conduct constitutes sex-based harassment is
necessarily fact-specific. While the final regulations do not purport
to identify all of the circumstances that could constitute sex-based
harassment under Title IX, a stray remark, such as a misuse of
language, would not constitute harassment under this standard. See
above discussion of Hostile Environment Sex-Based Harassment--Severe or
Pervasive (Sec. 106.2). Similarly, the Department takes First
Amendment concerns seriously, and nothing in the regulations requires
or authorizes a recipient to violate anyone's First Amendment rights.
See 34 CFR 106.6(d); see, e.g., W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 642 (1943); Hartop, 992 F.3d at 511 (holding that in the
absence of evidence that a professor's conduct ``inhibited Doe's
education or ability to succeed in the classroom,'' the conduct was not
sufficiently severe and pervasive to implicate Title IX); see also
above discussion of Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2).
The Department also declines to summarize a resolution letter, as
that letter describes OCR's determination in an individual case and is
not a formal statement of OCR policy.
Changes: None.
Hostile Environment Sex-Based Harassment--Elementary Schools and
Secondary Schools (Sec. 106.2)
Comments: One commenter expressed concern that the proposed
definition of ``sex-based harassment'' would be difficult for
elementary schools and secondary schools to apply in light of the range
of conduct that occurs at that level that may warrant attention or
discipline but may not rise to the level of sexual harassment under
Title IX. One commenter asserted that the proposed definition of ``sex-
based harassment'' would leave little room for school officials to make
judgment calls and asserted that elementary schools and secondary
schools have not received sufficient notice of this broad scope of
Title IX's coverage as required
[[Page 33517]]
by the Constitution's Spending Clause. One commenter urged the
Department to narrow the scope of the proposed definition of ``sex-
based harassment'' to more closely track the definition in the 2020
amendments and compared the proposed definition to the definition of
sexual harassment in OCR's 2011 Dear Colleague Letter on Sexual
Violence, which the commenter asserted was unworkable for elementary
schools and secondary schools.
A group of commenters expressed concern that the proposed
definition of hostile environment sex-based harassment would depart
from the Davis standard and be inappropriate for the elementary school
context. The commenters asserted that under the Davis standard, the
elementary school student would not be deemed to have engaged in sex
discrimination because the conduct would be severe, but not pervasive,
but under the proposed regulations, the outcome might be different
because the regulations would cover conduct that is either severe or
pervasive.
Discussion: Regarding the Spending Clause, Title IX has always
required elementary school and secondary school recipients to operate
their education programs or activities free from sex discrimination.
And the Supreme Court has noted that ``[b]ecause Congress did not list
any specific discriminatory practices when it wrote Title IX, its
failure to mention one such practice does not tell us anything about
whether it intended that practice to be covered.'' Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005) (emphasis omitted).
Federal agencies have authority to define the contours of the Spending
Clause contract with recipients through their regulations. Bennett v.
Ky. Dep't of Educ., 470 U.S. 656, 670 (1985). Accordingly, recipients
of Federal financial assistance agree to comply with Title IX
obligations as a condition of receiving Federal funds, including
regulatory requirements. Contrary to the commenter's assertion,
recipients received notice of the proposed definition of ``sex-based
harassment'' in the July 2022 NPRM and these final regulations. This
notice-and-comment rulemaking process provides the notice that the
Spending Clause, as construed in Pennhurst State School & Hospital v.
Halderman, requires. 451 U.S. 1, 17 (1981). Thus, recipients should
have anticipated the final definition becoming effective when they
continued to accept Federal funds. Further, for the reasons discussed
elsewhere in this preamble, the regulatory regime is not vague, so
recipients have sufficient notice of the conditions imposed on the
receipt of funds.
The Department disagrees that the definition of hostile environment
sex-based harassment is incompatible with the elementary school context
or that it leaves no room for the judgment of school administrators.
The definition contemplates and requires application of administrator
judgment. The Department notes that, as discussed above, the final
regulations define hostile environment sex-based harassment as
unwelcome sex-based conduct that, based on the totality of the
circumstances, is subjectively and objectively offensive and is so
severe or pervasive that it limits or denies 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 degree to which the conduct affected the
complainant's ability to access the recipient's education program or
activity; the type, frequency, and duration of the conduct; 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 unwelcome
conduct; the location of the conduct and the context in which the
conduct occurred; and other sex-based harassment in the recipient's
education program or activity. Because the definition of hostile
environment sex-based harassment accounts for factors such as the
parties' ages and the objective offensiveness of the conduct--which
commenters asserted officials at elementary schools and secondary
schools typically consider when addressing student conduct--the
Department disagrees with assertions that the definition of hostile
environment sex-based harassment would be unworkable for recipients in
this educational setting. Further, as discussed in more detail above in
Hostile Environment Sex-Based Harassment--the Davis Standard (Sec.
106.2), though Davis applies a higher standard for monetary damages in
private litigation, it has also endorsed a fact-specific assessment of
whether sex-based conduct rises to the level of harassment, and schools
have long applied that ``totality of the circumstances'' assessment
without issue. See Davis, 526 U.S. at 651 (``Whether gender-oriented
conduct rises to the level of actionable `harassment' thus `depends on
a constellation of surrounding circumstances, expectations, and
relationships' ''). Accordingly, the Department believes the definition
can appropriately be applied in the elementary school and secondary
school context.
The Department notes that the hypotheticals posed by commenters
ignore other elements of the definition of ``sex-based harassment,''
including that conduct that is an isolated event must be so severe that
it limits or denies participation in an activity, and that the conduct
be sex-based, not merely a circumstance in which the students involved
happen to be different genders. Cf. Oncale, 523 U.S. at 80 (``We have
never held that workplace harassment, even harassment between men and
women, is automatically discrimination because of sex[ ]''). Accounting
for the other elements included in the definition of ``sex-based
harassment'' significantly narrows the scope of conduct implicated by
the final regulations and thus helps address the concerns of these
commenters.
Further, the Davis Court acknowledged that a single instance of
severe student-to-student harassment could have the systemic effect of
denying a student equal access to an education program or activity. The
Davis Court doubted that Congress meant to hold schools liable in
private suits for money damages for such single acts, but the Court did
not cabin the authority of the Department to administratively enforce
Title IX in such contexts. For further explanation of the Davis
standard and the distinction between private litigation and
administrative enforcement, see the above discussion of Hostile
Environment Sex-Based Harassment--the Davis Standard (Sec. 106.2).
The Department discusses the burdens, costs, and benefits of the
definition of hostile environment sex-based harassment in more detail
below and in the Regulatory Impact Analysis.
Changes: None.
Sex-Based Harassment--Specific Offenses (Sec. 106.2)
General Comments
Comments: Some commenters supported general alignment of the
specific offenses listed in the definition of ``sex-based harassment''
with the Clery Act, and others opposed it because they said it would
make postsecondary institutions more likely to expel respondents
without due process. Some commenters supported the inclusion of the
definitions of sexual assault, dating violence, domestic violence, and
stalking in the definition
[[Page 33518]]
as opposed to cross-referencing the applicable provisions in the Clery
Act, but others stated that maintaining a cross-reference will prevent
confusion if Congress amends the Clery Act definitions in the future.
Some commenters objected to the inclusion of domestic violence,
dating violence, and stalking within the definition of ``sex-based
harassment'' because they said these offenses are not always sex-based,
and Congress did not classify them as sex-based harassment. One
commenter urged the Department to include human trafficking in the
definition of ``sex-based harassment'' because sex trafficking is a
problem in elementary schools and secondary schools.
One commenter supported having a single instance of a specific
offense constitute sex-based harassment and cited cases that, according
to the commenter, established that a single incident of rape is
sufficient to establish that a student was subjected to severe,
pervasive, and objectively offensive conduct. To the contrary, another
commenter said that courts have dismissed sexual harassment lawsuits
over misdemeanor sexual assaults when they have determined that a
single sexual assault by a peer did not create a hostile environment.
This commenter objected to defining the specific offenses as Title IX
violations regardless of where they occurred.
One commenter was concerned that specific offenses would introduce
the concepts of intent and consent into the analysis of sex-based
harassment, rather than unwelcomeness. Another noted that the specific
offenses are not written in the same format as the definitions of quid
pro quo sex-based harassment or hostile environment sex-based
harassment.
Discussion: The Department's definition of ``sex-based harassment''
largely aligns with the Clery Act, as explained in the preamble to the
July 2022 NPRM. See 87 FR 41418. The Department appreciates the
comments affirming the Department's inclusion of textual definitions
rather than cross-references in the definitions of sexual assault,
dating violence, domestic violence, and stalking. The Department
acknowledges the commenters' concern that if the Clery Act definitions
are amended, the difference in definitions could be confusing. As
explained in the preamble to the July 2022 NPRM and elsewhere in this
preamble, while the Department intends the definitions of these terms
to be consistent with the Clery Act, the Department opted to include
the textual definitions rather than cross-references for readability of
the regulations, to generally eliminate the need for recipients and
other members of the public to consult other statutes for the
definitions of the specific offenses, and because part of the statutory
definition of domestic violence is not applicable in a Title IX
context. See id. If there are future changes to the statutory
definitions, the Department will assess whether a technical update to
the Title IX definitions is appropriate to maintain the intended
consistency.
The Department disagrees with the commenter who stated that
inclusion of the Clery Act offenses would make a postsecondary
institution more likely to expel respondents without due process. As
discussed elsewhere in this preamble, especially the discussions of
Sec. Sec. 106.45 and 106.46, the final regulations contain numerous
guardrails to ensure that grievance procedures are conducted without
bias and with notice and an opportunity to be heard, and to ensure that
no person is subject to disciplinary sanction absent a determination
that they engaged in sex discrimination prohibited by Title IX.
In response to comments that domestic violence, dating violence,
and stalking are not always sex-based, the Department notes, similar to
the 2020 amendments, that the introductory text of the definition of
``sex-based harassment'' in the final regulations specifies that any
sex-based harassment must be ``on the basis of sex.'' Therefore, these
final regulations capture the requirement that, for conduct to be
prohibited under Title IX, it must be on the basis of sex.
The Department recognizes that sex trafficking is both a crime
under Federal law, including under 18 U.S.C. 1591, and a grave concern.
Although the Department declines to revise the definition of ``sex-
based harassment'' at this time because the specific offenses
referenced in the definition are limited to those listed in the Clery
Act, and sex trafficking is not listed in the Clery Act, the Department
takes this opportunity to clarify that acts associated with sex-
trafficking may also fall within the definition of hostile environment
sex-based harassment if they meet the elements of the definition.
The Department confirms that under these final regulations, similar
to the 2020 amendments, the specific offenses of sexual assault, dating
violence, domestic violence, and stalking need not satisfy the elements
of severity or pervasiveness or subjective and objective offensiveness
in order to constitute sex-based harassment. 85 FR 30153-54. Whether
courts have found that certain misdemeanor sexual assaults did not
constitute sexual harassment thus is not pertinent to these final
regulations. The specific offenses included in the definition of ``sex-
based harassment'' are based on the federally validated definitions of
these offenses. The Department recognizes that under State law, there
may be other sex offenses. Those other sex offenses may meet the
definition of hostile environment sex-based harassment if they satisfy
the elements of hostile environment harassment set forth in these final
regulations.
The Department also confirms that the specific offenses need not
satisfy the element of unwelcomeness in order to constitute sex-based
harassment. The Department agrees that the reference to sexual assault,
which is based on the Clery Act, introduces the concept of consent, as
discussed below. The Department recognizes that the specific offenses
are not written in the same format as quid pro quo sex-based harassment
or hostile environment sex-based harassment, but that is because the
specific offenses are based on other federally validated definitions.
The Department disagrees with a commenter's suggestion that the
specific offenses are covered regardless of where they occur. The
commenter misapprehends the scope of the regulations. As explained in
the discussion of Sec. 106.11, Title IX applies to sex discrimination,
including sex-based harassment, occurring under a recipient's education
program or activity in the United States. When sex-based harassment,
including the specific offenses, occurs outside of a recipient's
education program or activity, Title IX would not apply. However, as
Sec. 106.11 makes clear, Title IX requires that a recipient address a
hostile environment that exists under its education program or activity
even when some conduct, including in the form of any specific offense,
alleged to be contributing to the hostile environment occurred outside
of the recipient's education program or activity.
Changes: None.
Sexual Assault
Comments: One commenter was concerned that the definition of sexual
assault was too narrow because it would require the conduct to meet the
FBI's definition of rape, incest, fondling, or statutory rape, and also
stated that the proposed definition fails to meet the American Academy
of Pediatrics' definition of sexual assault.
One commenter asked the Department not to define sexual assault
with reference to the FBI's Uniform Crime Reporting (UCR) definition
because it is
[[Page 33519]]
difficult to locate the definition that the Department wants
postsecondary institutions to use on the FBI's UCR website. The
commenter suggested, instead, to include the definition of sexual
assault in the regulations to ensure that if the FBI revises its
definition before the Title IX regulations go into effect, it will not
impact the definition under Title IX.
Some commenters were concerned that the proposed definition of
sexual assault uses outdated terminology. Commenters objected to the
terms ``forcible'' and ``nonforcible'' because they are not defined and
the appropriate consideration, according to commenters, is lack of
consent rather than use of force. Some commenters urged the Department
to incorporate the definitions in the Clery Act regulations because
they use more inclusive and accessible terminology and so that
postsecondary institution recipients can use the same definitions under
Title IX and the Clery Act. Other commenters urged the Department to
elaborate on the definition of various terms (e.g., fondling, rape),
including to clarify whether the covered bases must be limited to the
purpose of sexual gratification.
Discussion: The Department acknowledges that commenters found the
definition of sexual assault confusing and appreciates the opportunity
to provide additional clarity to the discussion provided in the July
2022 NPRM. See 87 FR 41418. The 2020 amendments and these final
regulations adopt the Clery Act's statutory definition of the term
``sexual assault,'' 20 U.S.C. 1092(f)(6)(A)(v), which defines sexual
assault 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 currently consists of the
National Incident-Based Reporting System (NIBRS), which defines sex
offenses as ``[a]ny sexual act including Rape, Sodomy, Sexual Assault
With An Object, or Fondling directed against another person, without
the consent of the victim, including instances where the victim is
incapable of giving consent; also unlawful sexual intercourse.'' FBI,
Uniform Crime Reporting Program: National Incident-Based Reporting
System (2018), https://ucr.fbi.gov/nibrs/2018/resource-pages/nibrs_offense_definitions-2018.pdf.
The definition of sexual assault in the final regulations mirrors
the Clery Act's statutory definition of sexual assault, which tracks
the FBI definition of sex offenses. The Department declines to write
out the FBI definition of sexual assault in the final Title IX
regulations, as one commenter recommended. While the Department
understands the concerns about ease of locating the definition, the
Department drafted these final regulations to include the text of the
Clery Act statute's definitions of sexual assault, dating violence,
domestic violence and stalking (except for minor changes to the
definition of domestic violence). See 87 FR 41418. The definition of
sexual assault in 20 U.S.C. 1092(f)(6)(A)(v) refers to the FBI's UCR
system, and therefore these final regulations track VAWA 2022 by doing
so as well. The Department recognizes that, as explained in NIBRS,
``the UCR program combined the offense categories of Sex Offenses
(formerly Forcible) and Sex Offenses, Nonforcible'' and beginning in
2018 ``all offense types previously published in those two categories
are now published in one category as Sex Offenses'' and include the
following offenses: Rape, Sodomy, Sexual Assault With An Object,
Fondling, Incest, and Statutory Rape. Although the terms forcible and
nonforcible are no longer used by the UCR, the Department believes it
is appropriate to maintain the reference to those terms in the
definition of sexual assault to maintain consistency with the statutory
definition of sexual assault under the Clery Act. The Department also
notes that use of the words ``forcible or nonforcible'' in the Title IX
definition of sexual assault is not meant to imply that force is
required. Instead, the use of the terms communicates that either
forcible or nonforcible sex offenses under the UCR fulfill the
definition.
The Department thanks the commenter for pointing out that
definitions of sexual assault vary, and that the definition advanced by
the American Academy of Pediatrics captures conduct that is not
included in the FBI's definition. However, the Department's Title IX
regulations affect both elementary and secondary students, who are
children, and postsecondary students, most of whom are adults.
Therefore, while the American Academy of Pediatrics' definition of
sexual assault may capture additional conduct, the Department notes
that it may not be an appropriate definition for all recipients.
The Department declines to adopt a more specific definition of
sexual assault as suggested by commenters because the definition
contained in the Clery Act, which incorporates the FBI UCR system
definition, is broad enough to cover many of the examples mentioned by
the commenter. The Department also maintains that this approach
facilitates postsecondary institutions' understanding of their
obligations under Title IX and the Clery Act and provides elementary
schools and secondary schools with an appropriate definition of sexual
assault to protect their students from sex offenses under Title IX. See
85 FR 30176. In addition, nothing in the final regulations precludes a
recipient from providing examples and scenarios in its policy, from
considering the age of the complainant when classifying certain
incidents of sexual assault, or from providing related trainings to
help students and others understand what types of conduct are
prohibited under the recipient's policy. The Department also notes that
unwelcome sex-based conduct that is severe or pervasive and meets the
other elements of hostile environment sex-based harassment would
constitute sex-based harassment under Title IX, that a single instance
of sexual assault would likely meet the definition of hostile
environment sex-based harassment, and that sexual gratification is not
an element required by the definition of ``sex-based harassment'' under
Title IX.
The Department recognizes that one commenter asked for additional
explanation of the definition of rape. The Department declines to
include additional information in these final regulations because the
definition of rape is included in the Clery Act's statutory definition
of the term ``sexual assault.'' The Department also notes that
unwelcome sex-based conduct that is severe or pervasive and meets the
other elements of hostile environment sex-based harassment would
constitute sex-based harassment under Title IX regardless of whether
the conduct meets the definition of a specific offense.
Changes: As discussed below, the Department has added a note to the
final regulations regarding consent.
Consent
Comments: Some commenters asserted that removing the definition of
``consent'' exceeds the Department's authority and is inconsistent with
Title IX and established case law, citing Doe v. Oberlin College, 963
F.3d 580, 587-88 (6th Cir. 2020) and Doe v. University of Sciences, 961
F.3d 203, 206 (3d Cir. 2020). These commenters stated that some courts
have criticized the consent definitions used by some postsecondary
institutions and that inconsistent application of consent definitions
by postsecondary institutions may violate Title IX and a respondent's
constitutional rights, citing, e.g., Doe v. Miami University, 882 F.3d
579 (6th Cir. 2018); Nokes v. Miami University, No.
[[Page 33520]]
17-cv-482, 2017 WL 3674910, at *10 (S.D. Ohio Aug. 25, 2017); Matter of
Doe v. Purchase College State University of New York, 192 A.D.3d 1100,
1103 (N.Y. App. Div. 2021). Other commenters stated that the absence of
a clear definition of ``consent'' was not helpful to recipients,
students, and employees and that including a definition of ``consent''
would be particularly helpful for elementary schools and secondary
schools.
One commenter urged the Department to require a recipient to define
``consent'' when it is part of the definition of any form of sex-based
misconduct to alleviate confusion between acquiescence and consent. The
commenter noted that unwelcomeness is the historical test for
determining whether sex-based harassment occurred. Another commenter
asked the Department to prohibit a recipient from using a definition of
``consent'' that shifts the burden of proof to the respondent,
including affirmative consent.
One commenter requested that the Department clarify how to apply
the concept of consent at the elementary school and secondary school
level, including in cases involving very young children and students
with disabilities.
Discussion: ``Consent'' is a component of the sex offenses
classified under the FBI's UCR system, which are referenced in the
definition of sexual assault. Although the Department is not itself
defining ``consent'' nor requiring recipients to define ``consent,'' a
recipient may choose to define ``consent'' in its policies, as
explained below.
In the July 2022 NPRM, the Department expressed the tentative view
that it was appropriate to remove the entry for consent in Sec.
106.30(a) of the 2020 amendments because it was unnecessary and
confusing to include language in the definitions section stating that
the Department declines to define a certain term. See 87 FR 41423.
However, based on comments, the Department has determined that although
it is not defining the term ``consent,'' it is helpful to include a
note after the description of the specific offenses, similar to the
entry for consent in the 2020 amendments at Sec. 106.30(a), that
states the Assistant Secretary will not require a recipient to adopt a
particular definition of consent with respect to sex-based harassment
as defined in this section, if applicable. Including this note will
ensure that a recipient is aware that it is within the recipient's
discretion whether and how to define consent in its policies.
Commenters cite various cases, but those authorities do not support
their position that removing the definition of ``consent'' exceeds the
Department's authority, is inconsistent with Title IX, or that a
specific definition of ``consent'' is required under Title IX. The
cases cited by commenters do not discuss the Department's authority to
decline to define consent under Title IX, nor do they hold that Title
IX requires a specific definition of ``consent.'' Rather, these cases
discuss the meaning and application of consent under particular
postsecondary institution's Title IX policies. Under 20 U.S.C. 1682,
the Department may promulgate regulations to effectuate Title IX, and
after serious consideration and for the reasons stated in this
discussion, the Department has decided that providing flexibility to
recipients about whether and how to define the term ``consent'' is
consistent with that mandate.
The Department acknowledges commenters who wanted the Department to
define ``consent'' for recipients. The Department's position remains,
as stated in the preamble to the 2020 amendments, that whether and how
to define ``consent'' for purposes of sexual assault within a
recipient's educational community should be left to the discretion of
recipients, including elementary schools and secondary schools, and so
the Department declines to adopt a Federal definition of ``consent''
for Title IX purposes. See 85 FR 30124-25. The Department notes that
many recipients are required by State law to apply particular
definitions of ``consent,'' and recipients may consider relevant State
law if they choose to adopt a definition of ``consent.''
With respect to the commenter's concern that elementary school and
secondary school employees may have less experience applying a
definition of ``consent'' than those at the postsecondary level, the
Department notes that the training required under the final regulations
would include any definitions used by the recipient, including with
respect to consent if the recipient chooses to define it.
The Department disagrees that the failure to require recipients to
adopt a particular definition of ``consent'' with respect to sexual
assault will lead recipients to confuse acquiescence for consent. As
discussed earlier, the Department's view is that a recipient has the
discretion to choose whether and how to define ``consent'' based on
what is best suited for its educational community and consistent with
its State law. Therefore, the Department declines in the final
regulations to prohibit or require a particular definition of
``consent.'' Consistent with the position taken in the preamble to the
2020 amendments, the Department disagrees with the commenter that
affirmative consent inherently places the burden of proof on a
respondent. See 85 FR 30125. The Department notes that, similar to the
2020 amendments, the final regulations at Sec. 106.45(f)(1) require
that the recipient--and not the parties--gather sufficient evidence to
determine whether sex discrimination occurred. Regardless of whether
and how a recipient defines ``consent,'' the burden of proof, and the
burden of gathering evidence sufficient to reach a determination
regarding whether sex discrimination occurred, is on the recipient. The
final regulations do not permit the recipient to shift that burden to a
respondent to prove consent, nor do they permit the recipient to shift
that burden to a complainant to prove absence of consent. See 85 FR
30125.
Consistent with the view that institutions should have discretion
to choose a particular definition of ``consent,'' the Department
declines to provide specific examples of how to apply the concept of
consent to specific scenarios in elementary schools and secondary
schools. With respect to the application of consent in elementary
schools and secondary schools and to students with disabilities,
nothing in the final regulations precludes a recipient from using a
definition of ``consent'' that takes into account a student's age or
developmental level, and a recipient's definition of ``consent'' must
be consistent with applicable disability laws. In addition, the final
regulations require that when a complainant or respondent is an
elementary or secondary student with a disability, the Title IX
Coordinator must consult with one or more members of the student's
Individualized Education Program (IEP) team, if any, and one or more
members of the student's Section 504 team,\14\ if any, to help ensure
that the recipient complies with the requirements of the IDEA, 20
U.S.C. 1400 et seq., and Section 504, 29 U.S.C. 794, throughout the
recipient's implementation of its grievance procedures.
---------------------------------------------------------------------------
\14\ Under the IDEA regulations, that group is known as the IEP
Team. 34 CFR 300.23. The term ``Section 504 team'' does not appear
in the regulations implementing Section 504, but the Department uses
this term informally throughout this preamble, as it is often used
by commenters.
---------------------------------------------------------------------------
The Department notes that some of the evidence that may be relevant
to determining capacity to consent for students with disabilities may
be records that are maintained by a physician, psychologist, or other
[[Page 33521]]
recognized professional or paraprofessional in connection with the
provision of treatment to the party. The final regulations at Sec.
106.45(b)(7)(ii) state that use of such records in the recipient's
grievance procedures is impermissible unless the recipient obtains the
party's voluntary, written consent for such use. Therefore, as long as
an eligible student or the parent of a student with a disability
consents to the use of such records in the recipient's grievance
procedures under Sec. 106.45(b)(7)(ii), the recipient may use the
records to aid it in making a determination regarding consent.
Changes: The Department has added a note to the definition of
``sex-based harassment'' to explain that the Assistant Secretary will
not require a recipient to adopt a particular definition of consent,
where that term is applicable with respect to sex-based harassment.
Dating Violence
Comments: Some commenters noted that the definition of dating
violence in the proposed definition of ``sex-based harassment'' would
not completely align with the statutory definition under VAWA 2013 or
VAWA 2022. One commenter recommended that the Department specify
whether dating violence requires a crime of violence. The commenter
noted that the definition of dating violence includes the term
violence, but, unlike the definition of domestic violence, does not
specify that it must be a crime of violence.
One commenter suggested combining the definitions of domestic
violence and dating violence. One commenter suggested the definition of
dating violence should cover coercive behavior that is used to threaten
and intimidate survivors. Specifically, the commenter suggested adding
to the dating violence definition language from the VAWA 2022
definition of domestic violence regarding victim services that the
Department omitted from the proposed definition of domestic violence.
Discussion: The Department acknowledges that the definition of
dating violence in the proposed definition of ``sex-based harassment''
would not completely align with the statutory definition in 34 U.S.C.
12291(a) (as cross-referenced in the Clery Act). Under VAWA 2022,
dating violence means violence committed by a person (A) who is or has
been in a social relationship of a romantic or intimate nature with the
victim; and (B) where the existence of such a relationship shall be
determined based on a consideration of the following factors: (i) The
length of the relationship; (ii) The type of relationship; and (iii)
The frequency of interaction between the persons involved in the
relationship. 34 U.S.C. 12291(a)(11). This difference was inadvertent,
and the Department is revising the proposed definition of dating
violence in the final regulations to align with the definition in
section 12291(a)(11). As a point of clarification, the definition does
not require that dating violence be a ``crime of violence.''
The Department acknowledges the suggestion to combine the
definitions of domestic violence and dating violence and add references
to coercive behavior used to threaten or intimidate survivors, but
declines to do so in order to align the specific offenses under Title
IX as closely as possible with the relevant parts of the Clery Act and
VAWA 2022. The Department similarly declines the suggestion to
incorporate the part of the VAWA 2022 domestic violence definition
that, as discussed below, was omitted from the Department's proposed
definition of domestic violence into the definition of dating violence
in the final regulations. As explained below in the discussion of the
definition of domestic violence, the Department omitted that part of
the VAWA 2022 definition of domestic violence from the final definition
because some of the VAWA 2022 definition of domestic violence is not
applicable to Title IX. See 87 FR 41418.
Changes: The Department has revised the definition of dating
violence to fully align with the definition in 34 U.S.C. 12991(a) (as
cross-referenced in the Clery Act).
Domestic Violence
Comments: Some commenters recommended that the Department adopt a
final definition of domestic violence that more closely tracks the
definition in VAWA 2022 because the Department's proposed definition
omitted part of the VAWA 2022 definition. One commenter who wanted the
omitted language from the VAWA 2022 definition added to the definition
in the Title IX regulations said that the omitted language would
require a recipient to recognize how patterns of power and control,
including technological and economic abuse, interfere with a
complainant's ability to participate in or benefit from the recipient's
education program or activity.
One commenter said that while the definition of domestic violence
in VAWA 2022 includes conduct that ``may or may not constitute criminal
behavior,'' the Department's proposed definition of domestic violence
only applies to criminal behavior, which ignores the fact that domestic
violence often includes repeated coercive or controlling behavior,
which, when viewed in isolation, may or may not constitute criminal
conduct. This commenter also said that because the proposed definition
of domestic violence would only cover felony or misdemeanor ``crimes of
violence,'' the Department would be ignoring other common forms of
abuse besides physical violence that are included in the definition of
domestic violence in VAWA 2022. This commenter objected to the
Department's assertion that parts of the definition of domestic
violence in VAWA 2022 are not applicable to Title IX, explaining that
research shows it is common for students to experience forms of
domestic violence other than sexual and physical abuse.
One commenter was concerned that the reference to felony or
misdemeanor crimes ``under the family or domestic violence laws of the
jurisdiction of the recipient'' would require those implementing Title
IX to know the crimes in their jurisdictions and have the ability to
evaluate conduct from that perspective.
Other commenters recommended that the Department continue to cross-
reference the definitions of dating violence, domestic violence, and
stalking and explain in the preamble to the final regulations that only
the first part of the VAWA statutory definition of domestic violence
applies in the Title IX context.
Discussion: The Department appreciates commenters' suggestions that
the definition of domestic violence should more closely track the
definition in VAWA 2022 and acknowledges that the definition of
domestic violence in these final regulations is not the same as the
definition of domestic violence in VAWA 2022.
As discussed in the July 2022 NPRM, the Department has not included
all of the language from the definition of domestic violence in VAWA
2022 in the definition of domestic violence in the Title IX
regulations. See 87 FR 41418. The second part of the VAWA 2022
definition begins with ``in the case of victim services,'' and victim
services is a defined term in VAWA 2022 that refers to specific victim
services funded and made available under VAWA that are not available
under Title IX. In addition, the definitions in VAWA 2022 are
applicable for purposes of grants authorized under VAWA and Title IX
implementation is not a grant program authorized under VAWA. Therefore,
the Department was not legally obligated to
[[Page 33522]]
incorporate the entire VAWA 2022 definition into the Title IX
regulations and determined that including the reference to victim
services and the language that follows it from the VAWA 2022 definition
of domestic violence in the Title IX regulations would create confusion
for recipients. See id. The Department maintains the view, expressed in
the July 2022 NPRM, that omitting this language does not create a
substantive change to the VAWA 2022 definition of domestic violence for
Title IX purposes. Id. Further, the Department's omission of this
language is not intended to suggest that evidence of the conduct
described in the omitted language is not or can never be the basis for
a determination that sex-based harassment has occurred. Indeed,
depending on the facts and circumstances, such conduct (e.g., physical
abuse or sexual abuse, or a pattern of any other coercive behavior
committed, enabled, or solicited to gain or maintain power and control
over a victim, including verbal, psychological, economic, or
technological abuse) may constitute sex-based harassment if it is based
on sex and meets the elements of the definition of hostile environment
sex-based harassment or other specific offenses in the definition of
sex-based harassment such as sexual assault or stalking.
The Department acknowledges that the definition of domestic
violence in these final regulations may not align with the definition
of domestic violence used by other Federal agencies, but nothing
precludes recipients from complying with the definition of domestic
violence in these final regulations and to the extent applicable, any
definition of domestic violence used by other Federal agencies,
including the U.S. Department of Housing and Urban Development (HUD).
The Department explained in the July 2022 NPRM that, in some cases, the
Department and HUD may have overlapping jurisdiction over a recipient
due to HUD regulations that apply to campus housing for students,
faculty, or staff. See 87 FR 41416. The Department noted that it was
not required to align its definition of hostile environment sex-based
harassment with the definition of ``hostile environment harassment'' in
the context of HUD's enforcement of the Fair Housing Act. See id. The
Department is similarly not required to align its definition of
domestic violence with the definition of domestic violence used by HUD.
24 CFR 5.2003. Recipients that are subject to HUD's regulations must
comply with these final regulations as well as any applicable HUD
regulations.
The Department further notes that the beginning of the VAWA 2022
definition does not refer to felony and misdemeanor crimes ``of
violence'' as the proposed definition of domestic violence did, and
instead refers to ``felony and misdemeanor crimes.'' In response to
comments and after further consideration, the Department is removing
the phrase ``of violence'' to more closely align with VAWA 2022. The
Department acknowledges that the definition of domestic violence in the
final regulations still refers to crimes, but the Department declines
to remove that reference because the Department's view is that it is
preferable to track the language in the VAWA 2022 as closely as
possible except when the language is not relevant in the Title IX
context or the language in VAWA 2022 may be covered by another part of
the definition of ``sex-based harassment.'' The Department notes that
even if coercive or controlling behavior does not meet the definition
of domestic violence under the final regulations, it may constitute
sex-based harassment if it is based on sex and meets the elements of
the definition of hostile environment sex-based harassment.
The Department does not share the concern expressed by one
commenter that individuals responsible for implementing Title IX will
not have the knowledge of the criminal laws of the recipient's
jurisdiction necessary to evaluate whether the conduct alleged meets
the definition of domestic violence under the regulations. The
individual responsible for implementing the Clery Act at a
postsecondary institution must already be familiar with such laws
because the same language appears in VAWA 2022, which also applies to
the Clery Act. A recipient may also include information on the relevant
crimes and definitions as part of its training on the scope of conduct
that constitutes sex discrimination, including sex-based harassment as
required under Sec. 106.8(d)(1). Therefore, the Department declines to
remove ``under the family or domestic violence laws of the jurisdiction
of the recipient.''
The Department declines to replace the proposed definitions of
dating violence, domestic violence, and stalking with cross-references
to the Clery Act and VAWA 2022. The 2020 amendments used cross-
references, and stakeholders told the Department that this caused some
confusion. The Department believes that including the language from the
statutory definitions themselves will be more helpful for recipients
because it will be clearer how these terms are defined for purposes of
Title IX. 87 FR 41418.
Changes: The Department has removed the words ``of violence'' that
were modifying ``felony and misdemeanor crimes'' in the definition of
domestic violence.
Stalking
Comments: Some commenters said the proposed definition of stalking
is unclear. One commenter was concerned that the proposed definition of
stalking could violate the First Amendment because it is overbroad or
vague and prohibits protected speech. This commenter suggested that the
course of conduct must be ``menacing or invasive'' and that it be
defined as ``two or more acts, including, but not limited to acts in
which the respondent directly, indirectly, or through third parties, by
any action, method, device, or means, follows, monitors, observes,
surveils, threatens, or communicates to or about a person, or
interferes with a person's property.'' This commenter suggested that a
reasonable person should be defined as ``a reasonable person under
similar circumstances and with similar identities to the complainant''
and that ``substantial emotional distress'' should be defined as
``significant mental suffering or anguish that may but does not
necessarily require medical or other professional treatment or
counseling.'' This commenter also requested that the Department include
examples of the elements of the definition of stalking in the preamble
to the final regulations. Some commenters asserted that the proposed
definition could inadvertently discriminate against individuals with
disabilities whose nonthreatening behavior is a manifestation of their
disability and against individuals from different cultural backgrounds.
Discussion: As discussed above, the Department has largely decided
to align the definitions of specific offenses with the VAWA 2022
definitions. Under VAWA 2022, stalking means a course of conduct
directed at a specific person that would cause a reasonable person to
either fear for their safety or the safety of others or suffer
substantial emotional distress. 34 U.S.C. 12291(a)(36). Given that the
Department is maintaining the definition of stalking from the 2020
amendments in the final regulations, the Department does not believe it
is necessary to provide examples of the elements of the definition of
stalking, but the Department discusses some of the terms in the
definition in more detail below.
With respect to potential speech concerns, the court in Rowles,
discussed earlier, addressed the university's
[[Page 33523]]
stalking policy. 983 F.3d at 352. That policy was similar to the
definition of stalking in these final regulations in that it applied to
any ``course of conduct on the basis of sex with no legitimate purpose
that puts another person reasonably in fear for his or her safety or
would cause a reasonable person under the circumstances to be
frightened, intimidated or emotionally distressed.'' Id. (quoting the
policy). As with the university's harassment policy, the court rejected
both vagueness and overbreadth challenges to the stalking policy,
observing in particular that the ``reasonable person'' standard
appropriately defined the scope and meaning of the policy. Id. at 357-
58. The Department maintains that the definition of stalking in the
final regulations similarly is not vague or overbroad.
In response to the commenter who said that stalking could include
nonthreatening behaviors, the Department notes that the definition of
stalking under 34 U.S.C. 12291(a) (as cross-referenced in the Clery
Act) specifically requires a course of conduct that would cause a
reasonable person to fear for safety or suffer substantial emotional
distress. A ``course of conduct'' requires that there be more than one
incident and the conduct must be directed at a specific person.
Stalking can occur in person or using technology, and the duration,
frequency, and intensity of the conduct should be considered. Stalking
tactics can include, but are not limited to watching, following, using
tracking devices, monitoring online activity, unwanted contact,
property invasion or damage, hacking accounts, threats, violence,
sabotage, and attacks. See, e.g., Stalking Prevention Awareness and
Resource Center, Identifying Stalking SLII Strategies,
www.stalkingawareness.org/wp-content/uploads/2022/04/Identifying-Stalking-as-SLII-Strategies.pdf (last visited Mar. 12, 2024).
The Department declines to define a reasonable person in the
regulations because the definition of stalking in 34 U.S.C. 12291(a)
does not include such a definition. In this context, a reasonable
person is a reasonable person in the complainant's position, which is
consistent with how the Clery Act regulations define a reasonable
person in the context of stalking. See 34 CFR 668.46(a). The Department
does not adopt a definition of substantial emotional distress because
the definition of stalking in 34 U.S.C. 12291(a) does not include such
a definition. However, consistent with how the Clery Act regulations
define substantial emotional distress in the context of stalking,
medical or other professional treatment and counseling would not be
required to show substantial emotional distress in the Title IX
context. See 34 CFR 668.46(a).
In response to comments that the definition of stalking would
inadvertently discriminate against individuals with disabilities or
individuals from different cultural backgrounds, the Department notes
that in the context of stalking a recipient would consider whether a
reasonable person in the complainant's position would fear for their
safety or suffer emotional distress. The Department also notes that
recipients must comply with prohibitions on discrimination based on
disability in accordance with Section 504, the ADA, and Sec. 106.8(e)
of these final regulations. Additionally, recipients must comply with
Title VI, which prohibits discrimination based on race, color, or
national origin, including actual or perceived shared ancestry or
ethnic characteristics, or citizenship or residency in a country with a
dominant religion or distinct religious identity. Under Sec. 106.8(e)
of these final regulations, if a party is an elementary or secondary
student with a disability, the recipient must require the Title IX
Coordinator to consult with one or more members, as appropriate, of the
student's IEP team, 34 CFR 300.321, if any, or one or more members, as
appropriate, of the group of persons responsible for the student's
placement decision under 34 CFR 104.35(c), if any, to determine how to
comply with the requirements of the IDEA, 20 U.S.C. 1400 et seq., and
Section 504, 29 U.S.C. 794, throughout the recipient's implementation
of grievance procedures. If a party 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 determine how to help comply
with Section 504, 29 U.S.C. 794.
Changes: None.
8. Section 106.2 Definition of ``Relevant''
Comments: Some commenters supported the proposed definition of
``relevant,'' as it would help officials understand what evidence can
be relied upon in grievance procedures. One commenter opposed the
proposed definition because the commenter believed it would be too
narrow and would lead to the unfair exclusion of evidence from
grievance procedures.
For various reasons, some commenters suggested that the Department
adopt the definition of ``relevant'' in Rule 401 of the Federal Rules
of Evidence, including because they see that definition as well-
established and supported by case law. Another commenter recommended
the Department retain the requirement in the 2020 amendments to provide
directly related information to parties so that they can meaningfully
participate in relevance determinations. Another commenter asked the
Department to modify the definition of ``relevant'' to state that
evidence is also relevant if it aids in credibility determinations,
even if the questions or evidence are not necessarily directly relevant
to determining whether the alleged sex discrimination occurred. Another
commenter suggested the Department use the term ``information'' rather
than ``evidence'' in the proposed definition of ``relevant'' because a
recipient does not operate as a court of law and does not apply the
Federal Rules of Evidence to its grievance procedures. Some commenters
stated that if the Department's final regulations retain proposed Sec.
106.46(e)(6)(i), which requires access to relevant evidence or a
written investigative report that summarizes relevant evidence, the
Department should keep the distinction between evidence ``related to''
the allegations and evidence ``relevant'' to the allegations and not
define ``relevant'' as including all evidence ``related to''
allegations of sex discrimination. The commenters stated the proposed
definition of ``relevant'' would be too broad and would result in
unwieldy hearings and investigative reports. Alternatively, the
commenters suggested that the Department remove the requirement to
provide parties with access to all relevant evidence and instead define
``relevant'' as ``evidence that may aid a decisionmaker in determining
whether the alleged sex discrimination occurred.''
One commenter suggested that the proposed definition of
``relevant'' is complicated and asked whether the proposed definition
and the proposed regulations would require the adoption of a set of
evidentiary standards. The commenter asked the Department to provide,
if possible, a set of guiding standards that a recipient could use to
promote consistency. Other commenters expressed concern that the
proposed definition of ``relevant'' is internally inconsistent. The
commenters stated that relevant means ``related to'' the allegations of
sex discrimination but noted that not all things ``related to'' an
allegation are relevant to grievance procedures. The commenters also
noted
[[Page 33524]]
that the proposed definition provides that questions or evidence are
relevant if they ``may aid'' in determining whether alleged sex
discrimination occurred, which the commenters thought was narrower than
the ``related to'' language in the definition. Similarly, another
commenter stated that the proposed definition of ``relevant'' is
confusing because the commenter did not understand how a question or
evidence could be ``related to'' allegations of sex discrimination but
not aid the investigation of such allegations as the Department
discussed in the July 2022 NPRM. 87 FR 41419.
Discussion: The Department has considered commenters' support and
concerns with the definition of ``relevant'' and has determined that it
will retain the definition as proposed. The Department disagrees with
commenters' suggestions that the definition of ``relevant'' is too
narrow and will lead to the unfair exclusion of evidence. As the
Department explained in the July 2022 NPRM, the definition of
``relevant'' is intended to assist a recipient with relevance
determinations and clarify the term for those who may not have
substantial experience applying the legal concept. 87 FR 41419. The
definition of ``relevant'' is sufficiently broad in that it allows for
the inclusion of all evidence that is related to an allegation of sex
discrimination and will aid the decisionmaker in determining whether
alleged sex discrimination occurred. With respect to scenarios
presented by commenters as examples of situations in which evidence
might be unfairly excluded due to the definition of ``relevant'' and
Sec. 106.45(b)(7), the Department declines to make definitive
statements about these hypothetical situations because analyzing
whether evidence is relevant is necessarily fact-specific and
commenters did not provide sufficient information to make any specific
determinations.
These regulations adopt a definition of ``relevant'' that reflects
its plain and ordinary meaning and is intended to provide clarity for
recipients that do not have extensive familiarity with legal concepts.
The Department therefore declines to adopt the Federal Rules of
Evidence's definition of ``relevant.'' The Department disagrees with
the commenter's suggestion that the Department should also eliminate
the term ``evidence'' entirely and use ``information'' in the
definition of ``relevant'' instead. The term ``evidence'' is well-known
and has a plain and ordinary meaning such that it can be understood by
all recipients, even those without a legal background and even though
the grievance procedures are not conducted in a court of law.
The Department also declines the commenter's suggestion to modify
the definition of ``relevant'' to state that evidence that aids in
credibility determinations is also relevant, even if the questions or
evidence are not necessarily directly relevant to whether the alleged
sex discrimination occurred. While evidence related to a witness's or
party's credibility may be relevant if it aids the decisionmaker in
determining whether alleged sex discrimination occurred, the Department
declines to state that all evidence that aids in credibility
determinations is relevant, as there may be evidence that arguably
pertains to credibility but is irrelevant to the allegations of sex
discrimination. The Department notes that Sec. Sec. 106.45(g) and
106.46(f) permit a decisionmaker to question parties and witnesses to
assess a party's or witness's credibility, but only to the extent that
credibility is both in dispute and relevant to evaluating one or more
allegations of sex discrimination.
For the reasons discussed in Sec. 106.46(e)(6)--Access to
Evidence, the Department declines to remove the requirement to provide
an equal opportunity to access either the relevant and not otherwise
impermissible evidence or the same written investigative report that
accurately summarizes this evidence in Sec. 106.46, provided that if
the postsecondary institution provides access to an investigative
report, it must further provide the parties with an equal opportunity
to access the relevant and not otherwise impermissible evidence upon
the request of any party. The Department also declines to retain the
current regulations' distinction between providing parties access to
evidence ``directly related to'' allegations of sexual harassment while
requiring a recipient only to include ``relevant'' information in an
investigative report or hearing. The Department does not agree that the
definition of ``relevant'' will result in overly burdensome
investigative reports or hearings. As noted in the July 2022 NPRM, a
recipient will still be permitted to exclude questions or evidence that
are related to allegations of sex discrimination but would not aid a
decisionmaker in determining whether the alleged sex discrimination
occurred. 87 FR 41419.
The Department also appreciates the opportunity to clarify what the
commenters perceived as an inconsistency in the definition of
``relevant.'' The definition states that relevant evidence and relevant
questions in grievance procedures must first be 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. Assuming this threshold standard is met, the definition
clarifies that 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. The evaluation of
whether questions are relevant under the definition of ``relevant''
includes consideration of whether the question is both related to the
allegations of sex discrimination under investigation and will aid in
showing whether the alleged sex discrimination occurred. The evaluation
of whether evidence is relevant under the definition of ``relevant''
includes consideration of whether the evidence is both related to the
allegations of sex discrimination under investigation and will aid a
decisionmaker in determining whether the alleged sex discrimination
occurred. The Department declines to provide specific examples of such
questions or evidence due to the necessarily fact-specific nature of
the analysis, but reiterates that under the Department's final
regulations a recipient would exclude questions or evidence that are
not relevant.
The Department's definition of ``relevant'' does not require the
adoption of a specific set of evidentiary rules. Instead, these final
regulations provide the appropriate balance between prescribing
sufficiently detailed procedures to foster consistently applied
grievance procedures while deferring to a recipient to tailor rules
that best fit each recipient's unique needs.
Changes: None.
9. Section 106.2 Definition of ``Remedies''
Comments: One commenter generally supported the proposed definition
of ``remedies.'' Some commenters opposed the proposed definition of
``remedies'' as too broad, without further explanation. Other
commenters found the proposed definition of ``remedies'' too vague
because it does not clarify what a remedy looks like or how a recipient
would know when the effects of discrimination have been remedied. One
commenter requested that the Department modify the proposed definition
of ``remedies'' to state that remedies are ``provided, as appropriate,
to a complainant or another person determined by the recipient as
having
[[Page 33525]]
had their equal access to the recipient's education program or activity
unlawfully limited or denied by sex discrimination.'' The commenter
stated this would ensure there is a process for identification of who
is entitled to remedies and avoid the term being misused to protect
those found responsible for sex discrimination.
Discussion: The definition of ``remedies'' in the final regulations
is consistent with the Department's explanation of remedies in the 2020
amendments. It also aligns with the changes the Department has made to
other parts of the regulations, such as the application of remedies to
all forms of sex discrimination, including sex-based harassment. The
Department acknowledges commenters' concerns that the definition of
``remedies'' does not specify what a remedy looks like or how a
recipient would know when effects have been remedied. Because remedies
generally are designed to restore or preserve access to the recipient's
education program or activity for a particular complainant or other
person or group of persons, they will be individualized and highly
fact-specific. For this reason, the Department has concluded it would
not be appropriate for the definition to state what a remedy would
categorically look like or how a recipient would know when effects have
been remedied in every instance. The Department notes, however, that it
provided a non-exhaustive list of examples of possible measures a
recipient may need to offer as remedies in the July 2022 NPRM. 87 FR
41423. 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
teachers' 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. Id.
The Department acknowledges commenters' concerns about the
definition of ``remedies'' but disagrees that the definition of
``remedies'' is too broad. The Department appreciates the commenter's
suggested language for revising the definition of ``remedies'' to
ensure that there is a process to identify who is entitled to remedies
and to avoid misuse of remedies to protect those found responsible for
sex discrimination under Title IX. The Department declines to adopt the
commenter's suggested language, however, as Sec. 106.45(h)(3)
adequately protects against potential misuse by limiting the provision
and implementation of remedies to, as appropriate, a complainant and
other persons the recipient identifies as having had equal access to
the recipient's education program or activity limited or denied by sex
discrimination. The Department also notes that Sec. 106.45(h)(3) and
(4) make clear that, following a determination that sex discrimination
occurred, remedies may be provided to complainants, while disciplinary
sanctions may be imposed on respondents.
Changes: The Department has added ``their'' to the definition of
``remedies'' for clarity.
10. Section 106.2 Definition of ``Respondent''
Comments: Commenters generally supported the proposed definition of
``respondent.'' Some commenters noted the proposed definition would
more accurately frame the allegations against a respondent in the
context of the prohibition on sex discrimination. One commenter also
stated that the definition, when combined with the Department's
assurances that all other civil rights laws apply to Title IX grievance
procedures, would help to ensure a fair and consistent process for
respondents with disabilities. Some commenters asked the Department to
clarify whether a student organization or other entity is included
within the definition of ``respondent.'' Some commenters stated that if
a volunteer can be a ``respondent,'' it would be harder for a recipient
to recruit and retain volunteers.
Discussion: The Department acknowledges commenters' support and
agreement with the definition of ``respondent'' and retains the
definition as proposed. As discussed in the preamble to the 2020
amendments, only a person in their individual capacity can be a
respondent in a Title IX grievance procedure. 85 FR 30139. The
Department continues to decline to require a recipient to apply Title
IX grievance procedures to groups or organizations. Nothing within the
final regulations prohibits a recipient from addressing the actions of
a student organization or other entity through a recipient's applicable
code of conduct procedures. To the extent commenters suggest it would
be preferable not to hold a recipient responsible for addressing sex
discrimination by volunteers because doing so might make volunteering
less attractive, the benefits of protecting civil rights and addressing
sex discrimination justify any such costs.
Changes: None.
11. Section 106.2 Definition of ``Student With a Disability''
Comments: Many commenters supported the proposed definition of
``student with a disability,'' stating the definition would provide
clarity for students with disabilities who experience sex
discrimination and would help ensure that all students with
disabilities have full access to a recipient's education program or
activity.
Some commenters opposed including the proposed definition of
``student with a disability'' in Sec. 106.2 as unnecessary because
Title IX applies to all students regardless of disability. Some
commenters requested that the definition of ``student with a
disability'' also refer to the definition of disability under the ADA,
42 U.S.C. 12102, and one commenter requested that the Department employ
alternative language such as ``disabled person'' or ``disabled
student.'' Some commenters asked questions about the application of the
proposed definition to particular populations of students.
Discussion: The Department appreciates the opinions expressed by
the commenters and has carefully considered the commenters' views.
While it is true that Title IX applies to all students regardless of
disability, it is important to clarify the intersection of a
recipient's obligations under Title IX with its obligations to protect
the rights of students with disabilities. A definition of ``student
with a disability'' is necessary for recipients to understand the scope
of Sec. Sec. 106.8(e) and 106.44(g)(6). Because it provides additional
clarity, this definition will strengthen overall enforcement of Title
IX.
The Department declines to add a reference to the ADA in this
definition
[[Page 33526]]
since that would be redundant. Further, the Department appreciates the
suggestion to use alternative language such as ``disabled person'' or
``disabled student'' but declines, as the phrase ``student with a
disability'' is a familiar term regularly used by the Department. The
Department also declines to speculate on the application of this
definition to particular populations of students, as such inquiries are
fact-specific and must be determined on a case-by-case basis.
Changes: None.
12. Section 106.2 Definition of ``Title IX''
Comments: None.
Discussion: In the Consolidated Appropriations Act of 2022,
Congress directed the Department and other Federal agencies to
establish an interagency task force on sexual violence in education,
and this provision was subsequently codified in the chapter of the U.S.
Code that contains Title IX, 20 U.S.C. 1689. Public Law 117-103, div.
W, title XIII, Sec. 1314, Mar. 15, 2022, 136 Stat. 936. The Department
has therefore further revised the definition of ``Title IX'' to include
section 1689.
Changes: The Department has added section 1689 to the list of
sections in title 20 of the U.S. Code that comprise Title IX.
D. Other Definitions (Definitions That the Department Did Not Propose
To Amend)
1. Section 106.2 Definition of ``Employee''
Comments: Some commenters asked the Department to include a
definition for ``employee'' to make clear who has reporting
requirements under Sec. 106.44(c) and who needs to be trained under
Sec. 106.8(d).
Discussion: Given the wide variety of arrangements and
circumstances across recipients and variations in applicable State
employment laws, the Department has determined that recipients are best
positioned to determine who is an ``employee.'' For additional
discussion on who is subject to the employee reporting obligations in
Sec. 106.44(c) and the employee training requirements under Sec.
106.8(d), see those sections of this preamble.
Changes: None.
2. Section 106.2 Definition of ``Federal Financial Assistance''
Comments: A number of commenters asked the Department to amend or
clarify the definition of ``Federal financial assistance'' in light of
recent court decisions holding that tax-exempt status under 26 U.S.C.
501(c)(3) constitutes Federal financial assistance for purposes of
Title IX.\15\ Some commenters were concerned that this would obligate a
wider range of educational institutions, including private religious
institutions, to comply with Title IX. Commenters asserted this would
be inconsistent with the Department's current and proposed regulations
and prior interpretations.
---------------------------------------------------------------------------
\15\ Commenters cited E.H. v. Valley Christian Acad., 616 F.
Supp. 3d 1040, 1050 (C.D. Cal. 2022); Buettner-Hartsoe v. Baltimore
Lutheran High Sch. Ass'n, No. CV RDB-20-3132, 2022 WL 2869041, at *5
(D. Md. July 21, 2022), reconsideration denied, motion to certify
appeal granted, No. CV RDB-20-3132, 2022 WL 4080294 (D. Md. Sept. 6,
2022).
---------------------------------------------------------------------------
Discussion: The Department has determined that it is not necessary
to amend the definition of ``Federal financial assistance'' at this
time. Generally, tax benefits, tax exemptions, tax deductions, and most
tax credits are not included in the statutory or regulatory definitions
of Federal financial assistance. See, e.g., 42 U.S.C. 2000d-1; 28 CFR
42.102(c); 31 CFR 28.105; 34 CFR 106.2(g). Most courts that have
considered the issue have concluded that typical tax benefits are not
Federal financial assistance because they are not contractual in
nature.\16\ The Department notes that even if tax-exempt status is
considered a form of Federal financial assistance by some courts, not
all educational institutions that have tax-exempt status are subject to
the Department's Title IX regulations because the Department's Title IX
regulations only cover educational institutions that receive funds from
the Department. 34 CFR 100.2 (incorporated through 34 CFR 106.81).
Since the Department's Title IX regulations apply only to recipients of
funding from the Department, whether an educational institution may
also be a recipient for other purposes is outside the scope of these
regulations.
---------------------------------------------------------------------------
\16\ See, e.g., Paralyzed Veterans of Am. v. Civil Aeronautics
Bd., 752 F.2d 694, 708-09 (D.C. Cir. 1985); Johnny's Icehouse, Inca
v. Amateur Hockey Ass'n of Ill., Inc., 134 F. Supp. 2d 965, 971-72
(N.D. Ill. 2001); Chaplin v. Consol. Edison Co., 628 F. Supp. 143,
145-46 (S.D.N.Y. 1986).
---------------------------------------------------------------------------
Changes: None.
3. Section 106.2 Definition of ``Program or Activity''
Comments: One commenter was concerned that the current definition
of ``program or activity'' in Sec. 106.2, which the Department did not
propose amending, covers entities that are not connected to education
and thus are outside the Department's authority to regulate. This
commenter urged the Department to revise the definition of ``program or
activity'' to make clear that it only includes programs or activities
related to elementary schools and secondary schools or postsecondary
institutions and related activities.
Discussion: The Department declines the suggestion to amend the
definition of ``program or activity,'' as that definition is consistent
with the statutory definition of the term as clarified by the Civil
Rights Restoration Act of 1987, 20 U.S.C. 1687 (CRRA).\17\ Title IX,
unlike the other statutes amended by the CRRA, prohibits discrimination
only in a recipient's ``education'' program or activity. 20 U.S.C.
1681(a). The term ``education program or activity'' is not separately
defined in the Title IX statute or regulations, so a fact-specific
inquiry is required to determine whether a particular program or
activity of a non-educational institution recipient is educational, and
thus covered by Title IX. Note that if any part of an educational
institution receives Federal funds, all of its operations are covered
by Title IX. See, e.g., O'Connor v. Davis, 126 F.3d 112, 117 (2d Cir.
1997); Horner v. Ky. High Sch. Athletic Ass'n, 43 F.3d 265, 271 (6th
Cir. 1994); Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir. 1993).
---------------------------------------------------------------------------
\17\ The CRRA clarified the interpretation of ``program or
activity'' under Title IX, Section 504, the Age Discrimination Act
of 1975, and Title VI. See Public Law 100-259, 102 Stat. 28 (Mar.
22, 1988).
---------------------------------------------------------------------------
Changes: None.
4. Section 106.2 Definition of ``Recipient''
Comments: One commenter suggested that, in light of the Fourth
Circuit's decision in Peltier v. Charter Day School, Inc., 37 F.4th 104
(4th Cir. 2022), cert. denied, 143 S. Ct. 2657 (2023), the Department
should amend the current definition of ``recipient'' to state that
Title IX applies to charter school operating companies and
subcontractors engaged by charter schools or their owners to operate
charter schools.
Discussion: In Peltier, the Fourth Circuit held that a for-profit
corporation responsible for the day-to-day operations of a charter
school received Federal funds through its contract with the charter
school operator--the intermediary--and was therefore a recipient
subject to the requirements of Title IX. Id. at 127. The Department
agrees with the Fourth Circuit's determination that, under the
longstanding regulatory definition of ``recipient'' and Supreme Court
precedent, `` `[e]ntities that receive federal assistance, whether
directly or through an intermediary, are recipients
[[Page 33527]]
within the meaning of Title IX.' '' Id. (quoting NCAA v. Smith, 525
U.S. 459, 468 (1999)). The Department therefore declines, as
unnecessary, the suggestion to amend the definition of ``recipient'' in
Sec. 106.2, as courts have made clear that the definition applies to
charter school operating companies and subcontractors who receive
Federal financial assistance directly or through an intermediary.
Changes: None.
5. Section 106.2 Definition of ``Student''
Comments: The Department received comments regarding the
longstanding definition of ``student,'' which the Department did not
propose to change in the July 2022 NPRM. Some commenters expressed
concern that the current definition of ``student'' as ``a person who
has gained admission'' is overly broad because it includes individuals
who have been admitted to and may not enroll in an educational
institution. Commenters expressed concern that requiring postsecondary
institutions to communicate Title IX policies and rights to all
admitted students would be overly burdensome. One commenter was
concerned that this definition of ``student,'' combined with language
in proposed Sec. 106.11, would suggest that a postsecondary
institution would be required to initiate grievance procedures in
response to a complaint alleging student-to-student sex-based
harassment that occurred prior to either student attending the
postsecondary institution.
Conversely, some commenters noted that this definition of
``student'' may be too narrow because it does not cover individuals who
participate in an institution's programs but have not ``gained
admission.'' This includes certain elementary school and secondary
school students enrolled in dual-enrollment programs and people who
audit courses or enroll in courses sporadically.
Some commenters suggested aligning the definition of ``student'' in
the Title IX regulations with the FERPA regulations, 34 CFR 99.3, which
include individuals who are or have been ``in attendance'' at an
educational institution, and the Clery Act, 20 U.S.C. 1092, which uses
the term ``enrolled students.''
Discussion: The Department appreciates the comments received about
the definition of ``student.'' The Department did not propose any
changes to the definition of ``student'' in the July 2022 NPRM, and
this definition is the same one that has been in effect since the U.S.
Department of Health, Education and Welfare (HEW) first issued final
regulations implementing Title IX in 1975. See 40 FR 24128, 24138 (June
4, 1975).\18\ Recipients have been required to notify students (defined
to include persons who have gained admission) of their
nondiscrimination policies and to resolve student complaints of sex
discrimination since 1975. The Department disagrees that the
application of this longstanding definition of ``student'' in these
contexts is overly burdensome. Title IX protects all persons, including
applicants for admission and admitted students, from sex
discrimination, and those persons must have appropriate access to a
recipient's policies and procedures. The costs associated with changes
to the regulatory provisions on nondiscrimination notices and grievance
procedures are addressed in more detail in the Regulatory Impact
Analysis.
---------------------------------------------------------------------------
\18\ In 1980, Congress created the United States Department of
Education. Department of Education Organization Act, Public Law 96-
88, sec. 201, 93 Stat. 668, 671 (1979); Exec. Order No. 12212, 45 FR
29557 (May 2, 1980). By operation of law, all of the determinations,
rules, and regulations of what was then HEW continued in effect, and
functions of HEW's Office for Civil Rights 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. 45 FR 30802, 30955-65 (May 9, 1980).
---------------------------------------------------------------------------
The Department disagrees with the commenters' concerns that the
definition of ``student'' as a person who has gained admission is too
broad. As stated in the preamble to the 2020 amendments, Title IX
prohibits a recipient from discriminating on the basis of sex in its
education program or activity and protects any ``person'' from such
discrimination. See 85 FR 30187. The preamble to the 2020 amendments
also stated that a student who has applied for admission and has gained
admission is attempting to participate in the education program or
activity of the recipient. See 85 FR 30187; cf. Brown, 896 F.3d at 132
& n.6, 133 (clarifying that Title IX's coverage is not limited to
enrolled students and includes members of the public ``either taking
part or trying to take part of a funding recipient institution's
educational program or activity'' when they attend events such as
campus tours, sporting events, and lectures, as long as the alleged
discrimination relates to the individual's participation or attempted
participation in such programs).
With regard to concerns that the definition of ``student'' is too
narrow, the Department maintains the position stated in the preamble to
the 2020 amendments that where the final regulations use the phrase
``students and employees'' or ``students,'' such terms are used not to
narrow the application of Title IX's nondiscrimination mandate but to
require particular actions by the recipient reasonably intended to
benefit students, employees, or both. See 85 FR 30187. In addition, the
Department notes that ``admission,'' as defined in Sec. 106.2, covers
a wide range of programs and is not limited to a formal offer of
admission but rather is defined to include ``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.'' Id.
Regarding the commenter's concern that a postsecondary institution
would be required to initiate its grievance procedures in response to a
complaint alleging student-to-student sex-based harassment that
occurred prior to either student attending the postsecondary
institution, under Sec. 106.11 a recipient has an obligation to
address a sex-based hostile environment under its education program or
activity, even when some of the conduct alleged to be contributing to
that hostile environment occurred outside of the recipient's education
program or activity. For additional discussion of the applicability of
Title IX, see the section on Sec. 106.11 in this preamble. In
addition, under Sec. 106.2 the definition of ``complainant'' includes
a person other than a student or employee who was participating or
attempting to participate in the recipient's education program or
activity at the time of the alleged sex discrimination. For additional
discussion of the definition of ``complainant,'' see the section on
Sec. 106.2 in this preamble.
The Department agrees with commenters that consistent use of
terminology can be valuable; however, terminology may appropriately
vary to reflect differences in the structures and purposes of different
statutes. FERPA, the Clery Act, and Title IX each serve distinct
objectives. For example, in the Clery Act, Congress specified that
institutions must carry out certain information dissemination
activities for the benefit of both prospective and enrolled students.
20 U.S.C. 1092(a). And in FERPA, the definition of ``student,'' 20
U.S.C. 1232g(a)(6), reflects congressional intent to exclude from that
law's coverage applicants for admission who did not attend the
educational agency or institution. See 120 Cong. Rec. S39863 (Dec. 13,
1974). The Department believes that the longstanding definition of
``student'' in the Title IX regulations accurately
[[Page 33528]]
reflects the scope of Title IX's prohibition on sex discrimination and
the longstanding statutory and regulatory framework, under which the
requirements governing sex discrimination against applicants for
admission and admitted students are addressed separately.
Changes: None.
6. Adding a Definition of ``Party''
Comments: None.
Discussion: The Department determined that it would be helpful to
clarify that ``party'' or ``parties,'' as used in the final
regulations, is intended to include only a ``complainant'' or
``respondent,'' as those terms are defined in Sec. 106.2. The term
``party'' does not include a Title IX Coordinator who initiates a
complaint under Sec. 106.44(f)(1)(v) or another participant in Title
IX grievance procedures, such as a witness or adjudicator.
Changes: Section 106.2 of the final regulations defines ``party''
as ``a complainant or respondent.''
7. Adding a Definition of ``Sex Discrimination''
Comments: Some commenters requested that the Department add a
definition of ``sex discrimination'' to the regulations.
Discussion: The Department appreciates the suggestion to define the
term ``sex discrimination'' and believes that final Sec. 106.10 helps
clarify the scope of sex discrimination, as discussed more fully in the
discussion of Sec. 106.10. To further clarify sex discrimination,
other sections of the regulations, including but not limited to Sec.
106.31, include examples of prohibited sex discrimination. The
Department therefore determined that it is not necessary to add a
definition of ``sex discrimination'' to these final regulations.
Changes: None.
E. Application
1. Section 106.11 Application
Obligation To Address Conduct Occurring Under a Recipient's Education
Program or Activity
Comments: Many commenters expressed overall support for proposed
Sec. 106.11, including because it would remove many geographical
limitations on a recipient's responsibilities under Title IX and
require a recipient to address sex-based harassment in its education
program or activity broadly--on a recipient's grounds, during school
activities off campus, and under a recipient's disciplinary authority;
would be consistent with recent court decisions recognizing that a
recipient must respond to sex-based harassment in off-campus settings;
would better reflect where sex-based harassment occurs given that
students live, learn, and participate in education programs off campus
and in remote settings; and would promote uniformity and consistency of
Federal laws because it would be more consistent with Title VII. Some
commenters also highlighted student populations more likely to live off
campus who would benefit from proposed Sec. 106.11, including
graduate, vocational, and community college students; low-income
students, students of color, former foster youth, and LGBTQI+ students;
student athletes; and students who attend training and workforce
development programs. Other commenters supported proposed Sec. 106.11
because it would close a gap in the 2020 amendments that the commenters
asserted created the potential for students to engage in off-campus
sex-based harassment to avoid disciplinary consequences.
Some commenters opposed proposed Sec. 106.11 and asked that the
Department retain the 2020 amendments because they have been upheld by
multiple courts. Some commenters asserted that proposed Sec. 106.11
would contradict the spirit and original intent of Title IX and exceed
the Department's authority. Other commenters opposed proposed Sec.
106.11 because they believed it would be inconsistent with Supreme
Court case law limiting private damages liability under Title IX to
``circumstances wherein the recipient exercises substantial control
over both the harasser and the context in which the known harassment
occurs,'' citing Davis, 526 U.S. at 645. One commenter stated that
proposed Sec. 106.11 would fail under the major questions doctrine
because the commenter felt it is far outside the authority previously
asserted by the Department, and Congress has attempted but failed to
pass legislation similar to proposed Sec. 106.11--H.R. 5396 (``Title
IX Take Responsibility Act of 2021'').
Some commenters asked the Department to include additional examples
of conduct occurring under a recipient's program or activity in Sec.
106.11, including AI technologies used by a recipient in, for example,
grading of tests or admissions programs, and any gender bias within
these technologies and conduct that impacts a recipient's education and
workplace environments, as well as off-campus locations related to a
recipient or a recipient-sponsored event or organization, including
fraternity and sorority houses, honors housing, apartments contracted
by third-party housing companies but affiliated with a university, and
other organizational meeting places. Another commenter asked the
Department to provide guidance on whether Sec. 106.11 would include
conduct that occurs during institution-sponsored field trips or
outings; conduct that occurs during remote learning in a parent's home;
and conduct that occurs in recipient-owned buildings or during
recipient-recognized student-run activities. Some commenters asked the
Department to clarify what would constitute ``off campus'' and
specifically what authority and obligations a recipient would have off
campus.
Discussion: The Department acknowledges commenters' support for
Sec. 106.11 and agrees with commenters who expressed that Sec. 106.11
aligns with the purpose and intent of Title IX, including the meaning
of ``under any education program or activity'' in the Title IX statute.
The Department recognizes that some commenters would prefer the
Department maintain the existing language in Sec. 106.44(a) of the
2020 amendments. The final regulations clarify and more completely
describe all of the circumstances in which Title IX applies. This
includes 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 a recipient's disciplinary
authority. Title IX also applies to sex-based hostile environments
occurring under a recipient's education program or activity even when
some conduct alleged to be contributing to the hostile environment
occurred outside the recipient's education program or activity or
outside the United States.
The Department disagrees that Sec. 106.11 contradicts the original
intent of Title IX, exceeds the Department's authority, or is
inconsistent with relevant case law. As discussed in the preamble to
the 2020 amendments, the Department's regulatory authority is
coextensive with the scope of the Title IX statute. 85 FR 30196. The
Title IX statute authorizes the Department to regulate sex
discrimination occurring under any education program or activity of a
recipient, 20 U.S.C. 1682, and defines ``program or activity'' broadly
and without geographical limitation, see 20 U.S.C. 1687 (defining
``program or activity'' to include ``all of the operations of '' a wide
array of recipient entities); see also 34 CFR 106.2(h), 106.31(a).
Further, the Department disagrees that Sec. 106.11 fails under the
major questions doctrine. The Supreme
[[Page 33529]]
Court, for example, has recognized the Department's authority to issue
regulations prohibiting sex discrimination under Title IX. Gebser, 524
U.S. at 280-81 (citing 20 U.S.C. 1682). The Department disagrees that
congressional failure to amend Title IX as proposed in H.R. 5396
prevents the Department from adopting Sec. 106.11. The Supreme Court
has made clear that ``[c]ongressional inaction lacks persuasive
significance because several equally tenable inferences may be drawn
from such inaction, including the inference that the existing
legislation already incorporated the offered change.'' Pension Ben.
Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (citations and
quotations omitted). And while the 2020 amendments were upheld by some
courts, this does not preclude the Department from changing or
modifying the regulations consistent with the Department's overarching
Title IX authority and existing case law. See, e.g., Brown v. Arizona,
82 F.4th 863, 875-76 (9th Cir. 2023), petition for cert. filed, No. 23-
812 (U.S. Jan. 25, 2024); Roe v. Marshall Univ. Bd. of Governors, 668
F. Supp. 3d 461, 467-68 (S.D.W. Va. 2023) (finding plaintiff plausibly
alleged substantial control over the context of her assault when school
exerted disciplinary authority over off-campus incident); see also 87
FR 41401-04.
The Department also disagrees that Sec. 106.11 is inconsistent
with the Supreme Court's holding in Davis that, in the context of a
private cause of action, a recipient is only responsible under Title IX
for ``circumstances wherein the recipient exercises substantial control
over both the harasser and the context in which the known harassment
occurs.'' 526 U.S. at 630. Section 106.11 clarifies that Title IX does
not apply to sex-based harassment that occurs outside of a recipient's
education program or activity. A recipient remains responsible only for
discrimination that occurs under its education program or activity,
i.e., ``in a `context' over which the [institution] has substantial
control.'' Brown, 82 F.4th at 875 (citing Davis, 526 U.S. at 644).
Consistent with Davis, under Sec. 106.11, a recipient is not
responsible for the actions of parties over which it lacks significant
control. Rather, a recipient is responsible only for alleged
discriminatory conduct over which it exercises disciplinary authority
or otherwise has substantial control. See Davis, 526 U.S. at 641. The
Department therefore reiterates that a recipient should not focus its
analysis on whether alleged conduct happened ``on'' or ``off'' campus
but rather on whether the recipient has disciplinary authority over the
respondent's conduct in the context in which it occurred.
The Department acknowledges that some commenters requested that the
Department expand Sec. 106.11 to include additional examples of
conduct occurring under a recipient's education program or activity,
including AI technologies. Other commenters requested more guidance on
what constitutes conduct under a recipient's education program or
activity and how Sec. 106.11 would apply to specific circumstances
such as institution-sponsored field trips, remote learning that occurs
in a parent's home, and recipient-recognized student-run activities,
including single-sex clubs and activities, fraternities and sororities,
and affinity groups. The Department declines to provide additional
examples of conduct occurring under a recipient's education program or
activity. As discussed in the July 2022 NPRM, conduct occurring under a
recipient's education program or activity would include, but is not
limited to, conduct that occurs in off-campus settings that are
operated or overseen by the recipient, including, for example, field
trips, online classes, and athletic programs; conduct subject to a
recipient's disciplinary authority that occurs off campus; conduct that
takes place via school-sponsored electronic devices, computer and
internet networks and digital platforms operated by, or used in the
operations of, the recipient, including AI technologies; and conduct
that occurs during training programs sponsored by a recipient at
another location. See 87 FR 41401. Section 106.11 does not provide an
exhaustive list, and additional forms of conduct or scenarios may fall
under a recipient's education program or activity, depending on the
facts. The Department reiterates that the final regulations do not
distinguish between sex discrimination occurring in person and that
occurring online. See id.
Changes: The Department has deleted the reference to ``even if sex-
based harassment'' from Sec. 106.11 and replaced it with ``even when
some conduct alleged to be'' in final Sec. 106.11 to clarify that a
recipient has an obligation to address a sex-based hostile environment
under its education program or activity in the United States, even when
some conduct alleged to be contributing to the hostile environment
occurred outside the recipient's education program or activity or
outside the United States.
Obligation To Address Hostile Environments
Comments: Many commenters expressed support for the requirement
that a recipient address a hostile environment created under its
education program or activity in the United States.
Some commenters opposed the requirement in proposed Sec. 106.11 to
address conduct that creates a hostile environment under the
recipient's program or activity, stating that the Department failed to
identify limits to proposed Sec. 106.11. Some commenters believed that
proposed Sec. 106.11 would infringe on family privacy and parental
rights by requiring a recipient to address conduct such as speech that
generally occurs under the supervision of a student's parent off campus
or actions by parents that prevent a child from participating in school
in a manner consistent with their gender identity.
Other commenters stated that the police or the FBI, not recipients,
should investigate alleged sex-based harassment that occurs outside of
a recipient's education program or activity or outside of the United
States.
Some commenters asked the Department to provide guidance and
examples to help a recipient understand how to apply proposed Sec.
106.11 in a range of settings involving a possible hostile environment.
Another commenter asked the Department to clarify a recipient's
responsibility to address situations in which a student alleges off-
campus sexual harassment without alleging any on-campus misconduct. The
commenter also asked whether one student's allegation of an off-campus
sexual assault against another student who is in the same class would
be sufficient to create a hostile environment in the program and if so,
what the recipient's obligation would be to investigate these
allegations.
Some commenters asked the Department to clarify an example
discussed in the July 2022 NPRM regarding proposed Sec. 106.11 in
which Student A reports that she was sexually assaulted by Student B
while studying abroad, that Student B has been taunting her with
sexually suggestive comments since their return to campus and that, as
a result, Student A is unable to concentrate or participate fully in
her classes and activities. 87 FR 41403. Several commenters stated that
under the current and proposed regulations, Student B's conduct would
require a recipient to take action and one commenter asked how proposed
Sec. 106.11 would change a recipient's current obligations to Student
A,
[[Page 33530]]
including whether a recipient would have to investigate and address
both the off-campus sexual assault and the on-campus taunting.
One commenter asked the Department to clarify its example of a
student (Student C) who was assaulted by a third party at an off-campus
nightclub, asking whether such an incident would require a recipient to
provide supportive measures to Student C. The commenter stated that
although the recipient would not have disciplinary authority over a
third-party assailant in the same way that it has authority over a
student, it would still have the authority to issue a no-trespass order
against a non-affiliated third party who assaults a student. Another
commenter asked the Department to clarify what it meant by
``representative of the recipient'' in the following July 2022 NPRM
statement regarding the Student C scenario: ``[b]ecause 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 under the recipient's
education program or activity.'' 87 FR 41403.
Discussion: The Department acknowledges commenters' support for the
requirement in Sec. 106.11 that a recipient must address a sex-based
hostile environment under its education program or activity in the
United States. As discussed in the July 2022 NPRM, this requirement is
consistent with the Supreme Court's requirements under Davis, 526 U.S.
at 645, and lower court precedent. 87 FR 41402-03; see, e.g., Brown, 82
F.4th at 875; 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); L.E. v.
Lakeland Joint Sch. Dist. #272, 403 F. Supp. 3d 888, 900-01 (D. Idaho
2019); Spencer v. Univ. of N.M. Bd. of Regents, 15-cv-141, 2016 WL
10592223, at *6 (D.N.M. Jan. 11, 2016).
Upon further consideration, the Department has modified Sec.
106.11 to clarify that a recipient has an obligation to address a sex-
based hostile environment under its education program or activity, even
when some conduct alleged to be contributing to the hostile environment
occurred outside the recipient's education program or activity or
outside the United States. In the July 2022 NPRM, Sec. 106.11 stated
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 the hostile environment occurred outside the
recipient's education program or activity or outside the United States.
87 FR 41401. In doing so, the Department did not intend to suggest that
a recipient must determine that conduct that occurred outside of the
education program or activity or outside of the United States is itself
``sex-based harassment'' to consider that conduct in its assessment of
whether a hostile environment exists within its education program or
activity. To avoid confusion and provide further clarity, the
Department has changed the phrase ``even if sex-based harassment
contributing to the hostile environment'' to ``even when some conduct
alleged to be contributing to the hostile environment.'' This change
does not change the scope of Title IX's application or a recipient's
obligations under Sec. 106.11, but more accurately accounts for the
fact that conduct that may contribute to a hostile environment under
the recipient's education program or activity need not necessarily be
``sex-based harassment.'' Consistent with the above discussion of
Hostile Environment Sex-Based Harassment--Factors to be Considered
(Sec. 106.2), a recipient must evaluate the totality of the
circumstances when determining whether there is a sex-based hostile
environment in its education program or activity, which may require
that the recipient consider allegations about conduct that occurred
outside of its education program or activity that may be contributing
to the alleged sex-based hostile environment.
When evaluating the totality of the circumstances to determine
whether a sex-based hostile environment exists under the recipient's
education program or activity, the factors a recipient would need to
consider are set forth in the definition of ``sex-based harassment'' in
Sec. 106.2 and include: (1) the degree to which the conduct affected
the complainant's ability to access the recipient's education program
or activity; (2) the type, frequency and duration of the conduct; (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 effects of the conduct; (4) the
location of the conduct and the context in which the conduct occurred;
and (5) other sex-based harassment in the recipient's education program
or activity. Not all alleged conduct occurring outside a recipient's
education program or activity will contribute to a sex-based hostile
environment within a recipient's program or activity. For more
information, see the above discussion of Hostile Environment Sex-Based
Harassment--Factors to Be Considered (Sec. 106.2).
The Department appreciates commenters' concerns about the limits of
Sec. 106.11 and requests for guidance and examples of circumstances in
which alleged conduct occurring outside a recipient's education program
or activity would contribute to a sex-based hostile environment under a
recipient's education program or activity. While the Department agrees
that conduct anywhere could contribute to a hostile environment in a
recipient's education program or activity, the Department appreciates
the opportunity to clarify that a recipient's Title IX obligation is to
address only the hostile environment that exists under its education
program or activity. Alleged conduct, including alleged sex-based
harassment, that occurred outside of the recipient's education program
or activity may be relevant to the investigation of, and may inform the
recipient's response to, the allegation of a hostile environment under
the education program or activity. But the recipient is not required to
respond independently to the alleged conduct that occurred outside the
education program or activity. Thus, in the Department's example of
Student A and Student B in the July 2022 NPRM, see 87 FR 41403, the
recipient would be obligated to address Student A's allegations of a
hostile environment under the recipient's program, including Student
A's allegations of taunting by Student B and Student A's inability to
concentrate in Student B's presence due to Student B's previous alleged
sexual assault of Student A. Indeed, a recipient's fact-specific
inquiry must consider whether a complainant's encounters with a
respondent in the recipient's education program or activity in the
United States give rise to a hostile environment, even when related
incidents of alleged conduct may have occurred outside of the
recipient's education program or activity or outside the United States.
87 FR 41403. The recipient would not, however, have a standalone
obligation to address the underlying alleged sexual assault of Student
A that allegedly occurred while Student A and Student B were abroad
because Title IX's protections do not apply extraterritorially.
In response to commenters' concerns about the Department's Student
C example in the July 2022 NPRM, see id., a recipient would not be
required under Title IX to provide supportive measures for sex-based
harassment that occurred outside the recipient's education program or
activity and has not contributed to a sex-based hostile
[[Page 33531]]
environment under its education program or activity. Nothing in these
final regulations, however, would prohibit a recipient from taking
action to support a student in this scenario, including, for example,
providing counseling services or other supportive measures. Moreover,
if the recipient has information indicating a specific and imminent
threat of sexual assault within its education program or activity, it
must take reasonable action to address that threat, for instance, by
issuing a no-trespass order or working with the student to notify law
enforcement.
The Department acknowledges commenters' concerns that the statement
``representative of a recipient'' in the example of Student C could be
confusing. The Department did not intend to introduce a new concept of
a ``representative'' in the July 2022 NPRM and appreciates the
opportunity to clarify that, in the hypothetical sexual assault of
Student C by a third party, if the recipient determines that the third
party is not a person over whom the recipient exercises disciplinary
authority, then the sexual assault did not occur within the recipient's
education program or activity. 87 FR 41403.
The Department disagrees that Sec. 106.11's requirement to address
sex-based hostile environments will infringe on the privacy of family
life, compromise parental control, or require a recipient to take
action against a parent who, for example, will not acknowledge their
child's expressed gender identity. As discussed above, Sec. 106.11
only requires a recipient to address a hostile environment occurring
under the recipient's education program or activity. Title IX does not
apply to the privacy of family life. The Department appreciates the
fundamental role of parents and respects the rights and
responsibilities of parents regarding the upbringing of their children.
The fact-specific nature of the hostile environment determination
prevents the Department from making definitive determinations about
specific examples of conduct. But the Department reiterates that Sec.
106.11 does not require a recipient to respond to any conduct occurring
solely outside of the recipient's education program or activity.
The Department agrees that when sex-based harassment occurs outside
of a recipient's education program or activity, law enforcement may
have a responsibility to investigate and respond to such sex-based
harassment. The Department notes that nothing in the final regulations
prevents a complainant from reporting sex-based harassment that occurs
off campus or outside of a recipient's education program or activity to
law enforcement, and the Department acknowledges that mandatory
reporting laws often require a recipient to report sex-based harassment
to law enforcement in addition to fulfilling the recipient's
obligations under Title IX. How a recipient's Title IX grievance
procedures interact with a concurrent law enforcement proceeding is a
fact-specific analysis that will depend on the requirements of the
applicable procedures, details of the particular conduct, and local
laws.
Changes: The Department has deleted the reference to ``even if sex-
based harassment'' from Sec. 106.11 and replaced it with ``even when
some conduct alleged to be'' in final Sec. 106.11 to clarify that a
recipient has an obligation to address a sex-based hostile environment
under its education program or activity in the United States, even when
some conduct alleged to be contributing to the hostile environment
occurred outside the recipient's education program or activity or
outside the United States.
Extraterritorial Application
Comments: Commenters offered a range of perspectives on proposed
Sec. 106.11 and extraterritorial application of Title IX. Some
commenters supported proposed Sec. 106.11 because they understood the
proposed regulations would protect students studying and participating
in school-sponsored programs abroad. Other commenters suggested the
Department modify proposed Sec. 106.11 to state clearly that Title IX
applies to all forms of sex discrimination that occur outside the
United States or strike ``in the United States'' from proposed Sec.
106.11.
Other commenters stated that proposed Sec. 106.11's application to
circumstances outside of the United States has no statutory basis in
Title IX and that, absent specific language, the Supreme Court has made
clear that statutes have domestic, not extraterritorial, application.
Some commenters opposed what they described as the application of Title
IX extraterritorially under Sec. 106.11 because it may preempt the
laws of foreign countries, conflict with local privacy laws, or
conflict with the requirements of the General Data Protection
Regulations (GDPR) in the European Union.
Several commenters requested additional clarification on how to
handle incidents of sex-based harassment that occur abroad. Another
commenter asked whether a postsecondary institution with an
international satellite campus must investigate and respond to sex
discrimination arising from conduct outside of the United States even
if the conduct does not contribute to a hostile environment under its
education program or activity. Some commenters asked whether the
application of Title IX under proposed Sec. 106.11 would include
events that involve two students outside of the United States and
create a hostile on-campus environment when they return.
Discussion: The Department appreciates commenters' perspectives
concerning Sec. 106.11 and acknowledges commenters who requested that
the Department provide additional clarification concerning the
extraterritorial application of Title IX, including to study abroad
programs. As discussed in the preamble to the 2020 amendments, the
Department continues to maintain that 20 U.S.C. 1681 does not have
extraterritorial application based on its plain text and the judicial
presumption against extraterritoriality. 85 FR 30474. Title IX states
that ``No 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) (emphasis
added). The plain language of the statute therefore makes clear that
Congress did not intend for 20 U.S.C. 1681 to apply extraterritorially
given the language limiting its application to the United States.
The judicial presumption against extraterritoriality is a
rebuttable presumption that U.S. laws apply only within U.S.
boundaries. EEOC v. Arabian Am. Oil Co (Aramco), 499 U.S. 244 (1991).
This presumption is rebuttable by evidence that Congress has clearly
expressed its affirmative intention to give a statute extraterritorial
effect. Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255 (2010).
When a statute gives no clear indication of extraterritorial
application, the Supreme Court has reiterated that it will be
interpreted as having none. Morrison, 561 U.S. at 255; Kiobel v. Royal
Dutch Petroleum, 569 US 108, 124-25 (2013).\19\ This presumption seeks
to avoid unintended conflicts between U.S. laws and the laws of other
nations that were the subject of commenters' concerns.
---------------------------------------------------------------------------
\19\ While King v. Eastern Michigan University, 221 F. Supp. 2d
783 (E.D. Mich. 2002), was cited by one commenter as support for the
application of Title IX extraterritorially, this case predates the
Supreme Court's holdings in Morrison and Kiobel.
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[[Page 33532]]
Because Title IX does not apply extraterritorially, it does not
apply to conduct that occurs outside of the United States, including in
study abroad programs, and the Department declines to modify Sec.
106.11 to state that Title IX applies to sex discrimination that occurs
outside of the United States. The Department emphasizes that a
recipient does not have an obligation under Title IX address sex
discrimination occurring outside of the United States. However, nothing
in these regulations prohibits a recipient from responding as
appropriate under its existing code of conduct or other policies
pertaining to study abroad programs.
As discussed in the July 2022 NPRM, a recipient does, however, have
a responsibility to address a sex-based hostile environment in its
education program or activity in the United States, even when some
conduct alleged to be contributing to the hostile environment occurred
outside of a recipient's education program or activity or outside of
the United States, including in a study abroad program. 87 FR 41403.
When, for example, a student alleges they have been assaulted by a
professor in a study abroad program and that a sex-based hostile
environment exists when the student and professor return to campus, a
recipient would be obligated to address the alleged hostile environment
that exists under its education program or activity in the United
States. How a recipient should address a complaint of a hostile
environment resulting from conduct alleged to have occurred outside of
the United States will depend on the particular facts and
circumstances.
The Department also appreciates commenters' concerns about privacy
laws in other countries, including the application of the GDPR in the
European Union. The Department reiterates that because Title IX does
not apply extraterritorially, a recipient would not be independently
obligated to respond to an incident of sex discrimination that occurs
in another country. If, while investigating and addressing a hostile
environment under its education program or activity in the United
States, a recipient seeks information about conduct that occurred in
another country, nothing in these regulations preempts applicable
privacy laws.
Changes: The Department has deleted the reference to ``even if sex-
based harassment'' from Sec. 106.11 and replaced it with ``even when
some conduct alleged to be'' in final Sec. 106.11 to clarify that a
recipient has an obligation to address a sex-based hostile environment
under its education program or activity in the United States, even if
conduct alleged to be contributing to the hostile environment occurred
outside the recipient's education program or activity or outside the
United States.
Conduct in Buildings Owned or Controlled by Officially Recognized
Student Organizations
Comments: Some commenters perceived proposed Sec. 106.11 as
closing a gap in a recipient's authority to address sex-based
harassment in student-recognized organizations such as spiritual clubs
and fraternities and sororities. One commenter stated, however, that
proposed Sec. 106.11 could be interpreted to entirely prohibit
sororities and fraternities from operating because conduct in a
building owned or controlled by a student organization is considered
part of the recipient's education program or activity, and a recipient
is required to end any sex discrimination occurring in its education
program or activity. Another commenter suggested proposed Sec. 106.11
would violate constitutional freedoms of association because the
commenter felt it would require a recipient to prohibit single-sex
clubs and activities, fraternities and sororities, single-sex affinity
groups and even single-sex dormitories. Some commenters asked the
Department to clarify the term ``officially recognized,'' and whether
an organization is officially recognized only when there is a voluntary
agreement to submit to the authority of a postsecondary institution.
One commenter asked the Department to clarify whether use of the term
``postsecondary institution'' means that proposed Sec. 106.11 does not
apply to elementary schools and secondary schools.
Discussion: The Department appreciates the opportunity to clarify
that Sec. 106.11 does not prohibit single-sex clubs and activities,
social fraternities and sororities, single-sex affinity groups, or
single-sex dormitories that are otherwise permissible under Title IX.
Section 106.11 does not change existing statutory exemptions to Title
IX, such as 20 U.S.C. 1681(a)(6), which clarifies that Title IX does
not apply to the membership practices of social fraternities or
sororities or certain voluntary youth organizations; and 20 U.S.C.
1686, which provides that Title IX does not prohibit a recipient from
maintaining single-sex living facilities. However, as the Department
explained in both the 2020 amendments and the July 2022 NPRM, while
Title IX exempts the membership practices of social fraternities and
sororities, it does not exempt such organizations from Title IX
altogether; a recipient is responsible for addressing other forms of
sex discrimination, including sex-based harassment, against
participants in a program offered by any such organization that it
officially recognizes or to which it provides significant assistance.
See 85 FR 30061; 87 FR 41536; see also U.S. Dep't of Educ., Office for
Civil Rights, Dear Colleague Letter on Voluntary Youth Service
Organizations, at 5 (Dec. 15, 2015), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201512-voluntary-youth-service-organizations.pdf.
The Department also appreciates the opportunity to clarify its
discussion of buildings owned or controlled by a student organization
officially recognized by a postsecondary institution. The decision to
officially recognize a student organization is within the purview of
the postsecondary institution itself and will depend on that
institution's particular policies and procedures. Depending on the
circumstances, a student organization may be officially recognized by a
postsecondary institution when the postsecondary institution exerts
oversight over the student organization or has the authority to
discipline the student organization. See, e.g., Farmer v. Kan. State
Univ., 16-cv-2256, 2017 WL 980460 at *7-10 (D. Kan. Mar. 14, 2017),
aff'd on other grounds, 918 F.3d 1094 (10th Cir. 2019); Weckhorst v.
Kan. State Univ., 241 F. Supp. 3d 1154, 1166-70 (10th Cir. 2019).
However, the Department's reference to buildings owned or controlled by
a student organization officially recognized by a postsecondary
institution does not mean that Sec. 106.11 applies only to
postsecondary institutions. Section 106.11 applies to all recipients,
including elementary schools and secondary schools.
Changes: None.
Conduct Under a Recipient's Disciplinary Authority
Comments: Some commenters opposed proposed Sec. 106.11 because
they believed it would require a recipient to monitor or police student
life for possible sex discrimination, regardless of where it occurs, as
part of its responsibility to address conduct under its disciplinary
authority. One commenter suggested the Department revise proposed Sec.
106.11 to eliminate references to a recipient's disciplinary authority
because many recipients have policies that allow the imposition of
discipline for conduct broadly, and expanding Title IX jurisdiction to
all such instances would be overbroad and inconsistent with the plain
meaning of
[[Page 33533]]
the term ``program or activity.'' One commenter asked the Department to
define disciplinary authority and asserted that the Department's
examples in the July 2022 NPRM did not provide any objective standards
by which a recipient could determine whether conduct would be under its
disciplinary authority.
One commenter suggested the Department limit proposed Sec. 106.11
to events that occur under or during a recipient's supervision, while
another suggested the Department change proposed Sec. 106.11 to
include conduct that is subject to potential sanctions by a recipient.
One commenter asked the Department to modify proposed Sec. 106.11 to
state explicitly that all off-campus sex-based harassment is covered by
Title IX, while another raised concerns that a recipient may not be
able to fully and fairly investigate all incidents occurring off
campus.
One commenter asked the Department to clarify how a recipient
should address conduct that implicates Title IX consistent with its
disciplinary authority under its code of conduct. The commenter noted
that recipients often have provisions in their codes of conduct that
grant the recipient broad authority to address illegal or reckless
conduct that creates health or safety risks for the campus community,
even if the conduct is beyond the typical scope of the recipient's
jurisdiction. Another commenter urged the Department to consider
whether proposed Sec. 106.11 would cause a recipient to limit its code
of conduct to reduce exposure to OCR investigations.
Another commenter asked the Department to clarify what constitutes
a ``similar context,'' as discussed in the July 2022 NPRM, for purposes
of determining conduct that is within the scope of a recipient's
disciplinary authority. Another commenter asked the Department to
clarify an example that was included in the preamble to the 2020
amendments and referenced in the July 2022 NPRM, in which the
Department stated that a teacher's sexual harassment of a student off
campus would ``likely'' be considered sex-based harassment in the
education program or activity.
Discussion: The Department disagrees with the commenters'
suggestion that including off-campus conduct within a recipient's
disciplinary authority is overbroad and inconsistent with Title IX. As
discussed in the July 2022 NPRM, conduct occurring under a recipient's
education program or activity also includes settings off campus when
such conduct is under the recipient's disciplinary authority. See
Davis, 526 U.S. at 647; 87 FR 41402. The Department has concluded that
the final regulations should align with this language in Davis to fully
clarify all of the circumstances in which Title IX applies. The
Department disagrees that covering such conduct requires a recipient to
monitor all of student life for possible sex discrimination, is
overbroad, or is unsupported by case law. As explained in the
discussion of Sec. 106.44(b), these final regulations do not impose a
duty on a recipient to affirmatively monitor for all prohibited sex
discrimination occurring under its education program or activity.
Rather, a recipient with knowledge of conduct that reasonably may
constitute sex discrimination under Title IX has specific obligations
set out under these final regulations. See Sec. 106.44(a), (f)(1)
(requiring the Title IX Coordinator, once on notice of conduct that
reasonably may constitute sex discrimination, to take action to
promptly and effectively end any sex discrimination in its education
program or activity, prevent its recurrence, and remedy its effects).
Further, the Department notes that Federal courts have held that a
recipient's responsibilities under Title IX extend to conduct subject
to the recipient's disciplinary authority. See, e.g., Brown, 82 F.4th
at 878-79 (finding student presented sufficient evidence of substantial
control when, among other things, the university's code of conduct
applied to conduct ``both on-campus and off-campus'' and the university
previously issued a no-contact order that applied off campus). Section
106.11 is also consistent with the example that the Department already
recognized in the preamble to the 2020 amendments, namely that a
teacher's sexual harassment of a student is ``likely'' to constitute
sexual harassment ``in the program'' of the recipient even if the
harassment occurs off campus or off school grounds and outside a
school-sponsored activity. 85 FR 30200; 87 FR 41402. The Department
therefore finds it unnecessary to include language explicitly stating
that off-campus sex-based harassment is covered by Title IX, as one
commenter suggested. One commenter sought clarification of the
Department's use of the term ``likely,'' which was quoted in the
preamble to the July 2022 NPRM from the preamble to the 2020
amendments. See 87 FR 41402 (quoting 85 FR 30200). The Department
confirms that if a recipient has disciplinary authority over a
teacher's sexual harassment of a student that occurs off campus or
outside of a school-sponsored activity, a recipient would be obligated
to respond to that sexual harassment under Sec. 106.11.
The Department declines commenters' suggestions to change the
language of Sec. 106.11 from conduct ``subject to a recipient's
disciplinary authority'' to conduct ``occurring under or during a
recipient's supervision,'' ``subject to potential sanctions by a
recipient,'' or ``that occurs off campus if the recipient has control
over the staff and students at the off-campus event where the conduct
occurred.'' The Department maintains that ``conduct subject to a
recipient's disciplinary authority'' most accurately reflects the scope
of a recipient's obligations under Title IX in the administrative
context and is consistent with existing case law, including Davis. See
526 U.S. at 646-7 (``We thus conclude that recipients of federal
funding may be liable for `subject[ing]' their students to
discrimination where the recipient is deliberately indifferent to known
acts of student-on-student sexual harassment and the harasser is under
the school's disciplinary authority.''); Brown, 82 F.4th at 875 (``[A]
key consideration is whether the school has some form of disciplinary
authority over the harasser in the setting in which the harassment
takes place.''); Marshall Univ. Bd. of Governors, 668 F. Supp. 3d at
467-68 (finding plaintiff plausibly alleged substantial control over
the context of her assault when school exerted disciplinary authority
over off-campus incident); Pogorzelska v. VanderCook Coll. of Music,
No. 19-cv-05683, 2023 WL 3819025, *15 (N.D. Ill. June 5, 2023) (finding
that a school may be liable for peer-on-peer harassment when ``the
harasser is under the school's disciplinary authority'' (citing Davis,
526 U.S. at 646-67)).
The Department also acknowledges that some recipients may exercise
their authority to address conduct that creates health or safety risks
for campus communities. The same broad authority would apply to a
recipient's obligation to address sex discrimination occurring in
similar contexts, as described in the July 2022 NPRM. 87 FR 41402. How
a recipient determines whether conduct would be subject to its
disciplinary authority and what constitutes a ``similar context'' is a
fact-specific analysis unique to each recipient; however, the
Department reiterates that to the extent a recipient addresses other
student misconduct or other interactions between students that occur
off campus, a recipient may not disclaim responsibility for addressing
sex discrimination that occurs in a similar context. If a recipient
responds when, for instance, one student steals
[[Page 33534]]
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. The Department notes,
however, that a recipient's obligation to investigate conduct occurring
under its disciplinary authority is only ever as broad as the
recipient's reasonable ability to do so.
The Department recognizes some commenters' concerns that Sec.
106.11 might cause recipients to limit their codes of conduct to reduce
exposure to OCR investigations, but the Department believes the
benefits of clarifying that conduct subject to a recipient's
disciplinary authority occurs under the recipient's education program
or activity outweigh potential concerns. The Department does not agree
with commenters who believe that a recipient will decide what conduct
to regulate based on whether recognition of such conduct would also
require them to address off-campus sex-based harassment. The Department
notes that recipients have been on notice since the 2020 amendments
that their disciplinary authority is a factor considered in evaluating
the extent of their responsibilities under Title IX, 85 FR 30093, and
commenters have not provided any examples of recipients limiting their
codes of conduct in light of such notice. Further, the Department
believes that recipients will continue to prioritize the safety and
well-being of their educational community in promulgating codes of
conduct that address conduct that poses ethical, safety, or health
risks to the community.
Changes: None.
Benefits and Burdens for Recipients
Comments: Several commenters stated that the current regulations
have resulted in many recipients adopting a confusing two-track system
under which on-campus conduct is handled through a Title IX process and
off-campus conduct is handled through alternative disciplinary
processes. These commenters supported proposed Sec. 106.11 because it
would help a recipient create a more streamlined process that would be
less confusing for students, be more resource-efficient, and help a
recipient better respond to sex discrimination, which is necessary to
fulfill the purpose of Title IX.
Some commenters opposed proposed Sec. 106.11 and stated that
requiring a recipient to address off-campus conduct or the on-campus
effects of off-campus conduct would strain recipient resources,
negatively impact recipient staffing and finances, and impact the
quality of education. One commenter stated that the Department failed
to consider the costs to recipients and the difficulty in administering
the requirements of proposed Sec. 106.11. Other commenters opposed
proposed Sec. 106.11 because they said it would deny a recipient
reasonable discretion to determine what conduct it has the capacity to
address. Some commenters stated that codes of conduct are a more
appropriate mechanism for addressing behavior that occurs outside a
recipient's education program or activity or outside of the United
States.
Several commenters requested modifications to proposed Sec. 106.11
to assist with the perceived burdens on a recipient. One commenter
asked that the Department provide a timeline or expectations for how a
recipient should investigate off-campus conduct, including the
anticipated duration of such investigations. Another commenter asked
the Department to amend proposed Sec. 106.11 to provide that when some
of the conduct or parties in a complaint are not within the recipient's
education program or activity, the recipient is only required to make
reasonable efforts to investigate, provide supportive measures, remedy
discrimination, and prevent the recurrence of the discrimination.
Discussion: The Department acknowledges commenters' support for the
clarity that Sec. 106.11 will provide to a recipient in responding to
sex discrimination under its education program or activity. The
Department recognizes commenters' concerns that the clarifications
provided in Sec. 106.11 may result in an increased caseload for some
recipients and possible additional administrative costs. As discussed
in the July 2022 NPRM, the Department is aware through anecdotal
reports that the 2020 amendments resulted in many recipients adopting a
two-track system for addressing sex discrimination, in which on-campus
sex-based harassment was addressed through Title IX grievance
procedures and off-campus sex-based harassment was handled through
alternative disciplinary processes. 87 FR 41549. Accordingly, the
Department assumes that many recipients already use alternative
disciplinary proceedings to address off-campus sex-based harassment
occurring under their disciplinary authority. 87 FR 41554. Thus, as
discussed in the Regulatory Impact Analysis in the July 2022 NPRM,
although Sec. 106.11 may change the procedures under which conduct
occurring off campus may be addressed, the Department does not
anticipate that it will meaningfully increase the burden imposed on
recipients. 87 FR 41562. Moreover, Sec. 106.11 will assist recipients
in responding to sex discrimination in a manner that is less confusing
to the educational community and more resource-efficient for some
recipients by reducing the need for a two-track system to address sex
discrimination. The Department also maintains that ensuring a recipient
fully addresses any sex discrimination occurring under its education
program or activity is not optional, is of paramount importance, and
justifies any increased cost. For more discussion of how the Department
has evaluated the costs and burdens of Sec. 106.11, see the Regulatory
Impact Analysis.
The Department understands that some commenters would prefer more
flexibility and discretion in responding to sex discrimination tailored
to their individual institutional circumstances. With respect to sex
discrimination, however, recipients are not simply enforcing their own
codes of conduct; rather, they are complying with a Federal civil
rights law, the protections and benefits of which extend uniformly to
every person in the recipient's education program or activity. The need
for full and complete implementation of the Title IX mandate that no
person be subjected to sex discrimination in education programs or
activities weighs in favor of adopting Federal regulations that ensure
recipients address all sex discrimination that occurs in their
education programs or activities consistent with the statute.
In response to commenters' requests for timelines or expectations
for how a recipient should investigate off-campus conduct or the
anticipated duration of such investigations and requests for changes to
proposed Sec. 106.11, those obligations are addressed above.
Changes: None.
Free Speech and the Doctrine of Ministerial Exception
Comments: Some commenters opposed proposed Sec. 106.11, which they
asserted would chill free speech and academic expression and invade
privacy at home. Other commenters did not oppose Sec. 106.11 but
expressed concerns about its impact on free speech. Some commenters
understood the provision to require a recipient to monitor off-campus
speech including scholarly articles, blog posts and personal social
media messages that could contribute to a hostile environment, while
others understood it to require school employees to report any
knowledge of potentially sex-related speech online, in person, or off
campus. One commenter
[[Page 33535]]
urged the Department to provide a clear statement that a recipient does
not have a duty to monitor students' online activities proactively
because this could lead to discriminatory surveillance. Other
commenters stated that the proposed regulations would create
uncertainty and increase litigation over a recipient's response to off-
campus speech, noting that the First Amendment gives a recipient less
control over off-campus speech. Some commenters asserted that the
proposed regulations threaten the First Amendment rights of student
journalists operating publications in off-campus offices to ensure
editorial independence and freedom for their publications.
Other commenters opposed proposed Sec. 106.11 because they claimed
it would infringe upon the rights of university-recognized student
religious organizations that own buildings off campus, where students
congregate for worship, organizational activities, or even to live,
such as a Christian sorority. Commenters stated that proposed Sec.
106.11 would also violate the doctrine of ministerial exception under
the First Amendment, which they asserted provides student religious
organizations with immunity from regulation on matters of internal
governance or operations.\20\ These commenters asserted that proposed
Sec. 106.11 would infringe on these organizations' right to freely
exercise their faith and conduct their internal affairs, particularly
when their exercise of faith or internal governance might conflict with
proposed changes to the definition of ``sex-based harassment.'' One
commenter asked the Department to address this conflict either by
expanding application of the existing religious exemption under Title
IX to apply to religious student groups or by creating an express
carve-out in proposed Sec. 106.11 for religious student groups.
---------------------------------------------------------------------------
\20\ The commenter cited Our Lady of Guadalupe Sch. v.
Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012); InterVarsity
Christian Fellowship/USA v. Bd. of Governors of Wayne State Univ.,
534 F. Supp. 3d 785, 803-04 (E.D. Mich. 2021); Lamb's Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Good News Club
v. Milford Cent. Sch., 533 U.S. 98 (2001); DeJohn, 537 F.3d at 317-
19; Reno v. ACLU, 521 U.S. 844, 874 (1997) (quoting Sable Commc'ns
of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).
---------------------------------------------------------------------------
Discussion: The Department appreciates commenters' concerns about
the impact of Sec. 106.11 on free speech among students, faculty, and
other members of a recipient's educational community. The Department
has determined that the definition of ``sex-based harassment''
sufficiently protects individual constitutional rights and interests
because it is tailored to require that any finding of a sex-based
hostile environment be based on the totality of the circumstances, and
be based on conduct that is both subjectively and objectively
offensive, and so severe or pervasive that it limits or denies a
person's ability to participate in or benefit from the recipient's
education program or activity. Under the definition, isolated comments,
for example, would generally not meet the definition of hostile
environment sex-based harassment. As explained more fully above in the
discussion of the Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2) and in the July 2022 NPRM, the
Department maintains that this definition comports with Davis and First
Amendment protections. 87 FR 41414.
In response to commenters who expressed concerns about impacts on
student journalists operating off campus, the Department reiterates
that Title IX does not regulate the content of speech as such and Sec.
106.6(d) clearly states that nothing in the Title IX regulations
requires a recipient to restrict any rights that would otherwise be
protected from government action by the First Amendment or any other
rights guaranteed against government action by the U.S. Constitution.
The Department notes that although Title IX does not require a
recipient to infringe on anyone's right to free speech under the First
Amendment, a recipient still has the ability to take responsive action
consistent with its policies and procedures to respond to protected
speech that affects their community, including by, for example,
offering supportive measures to a student who may be targeted by
protected speech, providing its own educational programming in response
to such speech, and other non-disciplinary measures.
The Department disagrees that Sec. 106.11 will require a recipient
to police speech and conduct in any location. In response to a
commenter's request for clarification about the obligation of a
recipient to monitor students' online activities, the Department notes,
as stated in the preamble to the July 2022 NPRM, that a recipient is
not expected to monitor the online activity of students or faculty. 87
FR 41440. When an employee, however, has information about conduct
among students that took place on social media or other platforms and
that reasonably may have created a sex-based hostile environment in the
recipient's education program or activity, the employee must comply
with the applicable notification requirements under Sec. 106.44(c) and
the recipient would have an obligation under Sec. 106.44(a)(1) to
respond promptly and effectively to address any hostile environment.
Id.
The Department also appreciates commenters' concerns about the
impact of Sec. 106.11 on university-recognized student religious
organizations that own buildings off campus, where students live or
congregate for worship or organizational activities. The Department
recognizes the importance of religious freedoms, including the right
for such organizations to congregate and freely exercise their faith,
as well as the doctrine of ministerial exception that precludes
application of Title VII and other employment discrimination laws to
the employment relationship between a religious institution and its
ministers.\21\ As with the concerns commenters raised about free
speech, the Department emphasizes that Sec. 106.6(d) clearly states
that nothing within these final regulations requires a recipient to
restrict any rights that would otherwise be protected from government
action by the First Amendment, which includes any First Amendment
rights pertaining to religious freedom. Accordingly, the Department
disagrees with commenters who suggested that Sec. 106.11 would
infringe on what commenters described as religious organizations' right
to congregate and freely exercise their faith. Additionally, because
these regulations do not require or authorize a recipient to violate
the First Amendment, the Department declines commenters' suggestion to
expand the application of the religious exemption to Title IX or to
provide an express carve-out in Sec. 106.11 for religious
organizations as some commenters suggested. While the statute's
religious exemption applies to education programs and activities
operated by educational institutions or other entities that receive
Federal funds and are controlled by a religious organization, it does
not exempt entities that are not controlled by a religious organization
or individual employees or students. It would be inappropriate to amend
Sec. 106.12, which effectuates Title IX's statutory religious
exemption, to address the rights of employees or students or recipients
that are not controlled by religious organizations.
---------------------------------------------------------------------------
\21\ Our Lady of Guadalupe Sch., 140 S. Ct. 2049; Hosanna-Tabor
Evangelical Lutheran Church & Sch., 565 U.S. 171.
---------------------------------------------------------------------------
The Department notes that it is unclear the extent to which the
First
[[Page 33536]]
Amendment's ministerial exception doctrine applies to student religious
organizations and Title IX, as the U.S. Supreme Court has not ruled on
this question and some courts have declined to extend this exception
beyond an employment law context.\22\ To the extent that a future court
would find that the doctrine applies to Title IX, Sec. 106.6(d)
instructs a recipient not to take action in violation of the First
Amendment, which would include such an exception.
---------------------------------------------------------------------------
\22\ While commenters cited InterVarsity Christian Fellowship/
USA v. Board of Governors of Wayne State University, 534 F. Supp. 3d
785 (E.D. Mich. 2021), for the proposition that the doctrine can be
applied to protect the rights of religious student organizations,
other courts have rejected the extension of the ministerial
exception to disputes regarding student organizations. See
InterVarsity Christian Fellowship/USA v. Univ. of Iowa, 408 F. Supp.
3d 960, 986 (S.D. Iowa 2019) (``The ministerial exception is an
affirmative defense `grounded in the First Amendment, that precludes
application of [employment discrimination laws] to claims concerning
the employment relationship between a religious institution and its
members.' ''), aff'd, 5 F.4th 855 (8th Cir. 2021).
---------------------------------------------------------------------------
Changes: None.
F. The Effect of Other Requirements and Preservation of Rights
1. Section 106.6(e) Effect of Section 444 of General Education
Provisions Act (GEPA)/Family Educational Rights and Privacy Act (FERPA)
and Directed Question 1
Interaction Between FERPA and Title IX Generally
Background: As discussed in the July 2022 NPRM, 87 FR 41404, FERPA
protects the privacy of students' education records and the personally
identifiable information they contain. Privacy is an important factor
that the Department carefully considered in promulgating the proposed
and final regulations, and recipients need to consider this factor in
implementing these regulations. To the extent that a conflict exists
between a recipient's obligations under Title IX and under FERPA, Sec.
106.6(e) expressly states that the obligation to comply with the Title
IX regulations is not obviated or alleviated by the FERPA statute or
regulations. In 1994, as part of the Improving America's Schools Act,
Congress amended GEPA, of which FERPA is a part, to state that nothing
in GEPA shall be construed to ``affect the applicability of . . . title
IX of the Education Amendments of 1972[.]'' 20 U.S.C. 1221(d). The
Department has long interpreted this provision to mean that FERPA
continues to apply in the context of enforcing Title IX, but if there
is a direct conflict between FERPA's requirements and Title IX's
requirements, such that enforcing FERPA would interfere with Title IX's
primary purpose to eliminate sex-based discrimination in schools, the
requirements of Title IX override any conflicting FERPA provisions. 85
FR 30424. This override of FERPA when there is a direct conflict with
Title IX is referred to in this preamble as the ``GEPA override.''
As an agency of the Federal government subject to the U.S.
Constitution, the Department is precluded from administering,
enforcing, and interpreting statutes, including Title IX and FERPA, in
a manner that would require a recipient to deny the parties their
constitutional rights to due process. See Sec. 106.6(d). This
principle was articulated in the Department's 2001 Revised Sexual
Harassment Guidance, which clarified that ``[t]he rights established
under Title IX must be interpreted consistent with any federally
guaranteed due process rights involved in a complaint proceeding'' and
that ``[FERPA] does not override federally protected due process rights
of persons accused of sexual harassment.'' 2001 Revised Sexual
Harassment Guidance at 22. The Department maintains this interpretation
under these final regulations. The override of FERPA when there is a
direct conflict with due process rights is referred to in this preamble
as the ``constitutional override.''
These final regulations, including Sec. Sec. 106.45(c), (f), and
(g) and 106.46(c), (e), and (f) help protect a party's, including an
employee respondent's, procedural due process rights under the Fifth
and Fourteenth Amendments to the U.S. Constitution by providing notice
and a meaningful opportunity to respond. See Mathews v. Eldridge, 424
U.S. 319, 348 (1976) (holding that procedural due process requires
notice and a meaningful opportunity to respond). Therefore, to the
extent provisions in these final regulations are necessary to protect
due process rights but conflict with FERPA, the conflicting FERPA
provisions would be subject to the constitutional override, in addition
to the GEPA override, as discussed below and as explained in greater
detail in the discussions of Sec. Sec. 106.45(f)(4) and 106.46(e)(6),
regarding access to evidence.
Comments: The Department received comments in response to Directed
Question 1: Interaction with FERPA (proposed Sec. 106.6(e)). The
Department addresses these comments and other FERPA-related comments in
this section, as well as in other sections that pertain to FERPA's
application to particular regulatory provisions.
Some commenters addressed the GEPA override, including one
commenter who recommended incorporating the GEPA override into Title
IX's regulatory text and another commenter who stated that FERPA should
preempt Title IX if there is a conflict regarding the privacy of
student information. Some commenters asked the Department to clarify
Title IX's intersection with FERPA and constitutional rights. One
commenter stated that complainants have a constitutional right to
privacy under the Fourteenth Amendment that overrides both Title IX and
FERPA.
The Department received several requests for clarification related
to the intersection between FERPA and Title IX. One commenter asked the
Department to provide resources addressing the intersection of the
Title IX regulations with FERPA, the Equal Access Act,\23\ Title VI,
the IDEA, and Section 504. Another commenter stated that more detailed
regulations regarding the interaction of FERPA and Title IX would be
helpful to stop recipients from using FERPA to protect themselves from
liability during the Title IX grievance procedures by, for example,
restricting the role of advisors or by requiring parties to waive
potential claims or indemnify recipients. The commenter noted that
Congress could amend FERPA.
---------------------------------------------------------------------------
\23\ 20 U.S.C. 4071.
---------------------------------------------------------------------------
Discussion: The Department emphasizes that a recipient must fulfill
its obligations under both Title IX and FERPA unless there is a direct
conflict that precludes compliance with both laws and their
corresponding regulations. The Department maintains its prior position
from the preamble to the 2020 amendments that ``[a] recipient should
interpret Title IX and FERPA in a manner to avoid any conflicts.'' 85
FR 30424; see also New York, 477 F. Supp. 3d at 301-02 (rejecting an
arbitrary and capricious challenge to the 2020 amendments regarding
their interaction with FERPA). Whether a direct conflict arises is a
fact-specific determination that must be addressed on a case-by-case
basis.
As discussed above, the GEPA override, which is statutorily
mandated by GEPA, 20 U.S.C. 1221(d), requires that Title IX override
FERPA when there is a direct conflict. Although one commenter asked the
Department to include the GEPA override in the regulations, this change
is not necessary because the GEPA override is already incorporated into
Sec. 106.6(e) with a
[[Page 33537]]
paragraph heading that references GEPA and with regulatory text stating
that the obligation to comply with Title IX is not obviated or
alleviated by FERPA. The Department maintains that these final
regulations make clear that a recipient must not use FERPA as a shield
from compliance with Title IX. See Sec. 106.6(e) (stating that the
obligation to comply with Title IX and its regulations is not obviated
or alleviated by FERPA). The Department notes a commenter's point about
changes that Congress could make to FERPA, but legislative changes are
outside the scope of the Department's authority. Likewise, the
Department does not have the authority to reverse the statutorily
mandated GEPA override, as suggested by a commenter.
As discussed above, the constitutional override, in addition to the
GEPA override, will apply when there is a direct conflict between
constitutional due process rights and FERPA. The Department is bound by
the U.S. Constitution and cannot administer Title IX or FERPA in a way
that deprives individuals of due process. Section 106.6(d)(2) and (3),
which was enacted as part of the 2020 amendments and remains unchanged
in these final regulations, states that nothing in Title IX requires a
recipient to deprive a person of any rights that would otherwise be
protected from government action under the Due Process Clauses of the
Fifth and Fourteenth Amendments of the U.S. Constitution or restrict
any other rights guaranteed against government action by the U.S.
Constitution.
The Department acknowledges the request that the Department provide
technical assistance addressing the intersection of the final Title IX
regulations with other Federal laws. The Department will offer
technical assistance, as appropriate, to promote compliance with these
final regulations.
Changes: The Department is making technical changes to Sec.
106.6(e) to introduce the acronym ``FERPA'' in the paragraph heading,
replace the reference to ``the Family Educational Rights and Privacy
Act'' with the acronym ``FERPA'' in the regulatory text, and reference
Title IX specifically.
Interaction Between Title IX and FERPA Regarding the Disclosure of
Information That is Relevant to Allegations of Sex Discrimination and
Not Otherwise Impermissible
Comments: Commenters generally sought clarification of the
interaction between Title IX and FERPA regarding evidentiary
disclosures. Some commenters addressed the disclosure of disciplinary
determinations. Some commenters sought confirmation that FERPA would
not prevent a recipient from notifying another recipient of the
identity of respondents and disciplinary determinations, while another
commenter expressed concern that FERPA exceptions might permit certain
information about the determination to be publicly disclosed.
One commenter asked the Department to clarify whether a recipient
must redact student names from documents related to the grievance
procedures, emphasizing that parties need to know the identities of
student-witnesses. Another commenter suggested that the Department
limit a recipient's ability to disclose Title IX information without
consent that would otherwise be permitted under FERPA, and to apply
FERPA's ban on the redisclosure of students' education records to the
parties' and their advisors' receipt of information regarding the
opposing party.
Discussion: These final regulations require a recipient to provide
the parties with access to the evidence that is relevant to the
allegations of sex discrimination and not otherwise impermissible. See
Sec. Sec. 106.45(f)(4), 106.46(e)(6). In the context of disciplinary
proceedings, the Department has previously recognized that under FERPA,
``a parent (or eligible student) has a right to inspect and review any
witness statement that is directly related to the student, even if that
statement contains information that is also directly related to another
student, if the information cannot be segregated and redacted without
destroying its meaning.'' U.S. Dep't of Educ., Office of Planning,
Evaluation, and Policy Development, Final Regulations, Family
Educational Rights and Privacy, 73 FR 74806, 74832-33 (Dec. 9, 2008).
In the context of Title IX grievance procedures, there is no direct
conflict between Title IX and FERPA regarding the recipient's
disclosure of information contained in one student's education records
to another student to whom that information is also directly related.
See 85 FR 30431; New York, 477 F. Supp. 3d at 301-02. The Department
acknowledges, however, that certain evidence that is relevant to the
allegations may not necessarily be directly related to all parties for
purposes of FERPA. To the extent these final regulations require
disclosure of personally identifiable information from education
records to the parties (or their parents, guardians, authorized legal
representatives, or advisors) that directly conflicts with FERPA (e.g.,
disclosure of a student complainant's education records to an employee
respondent as part of investigating an allegation of sex-based
harassment), the constitutional override and the GEPA override apply,
and require such disclosure. FERPA does not override the due process
rights of the parties, including, at minimum, the right to an
explanation of the evidence and a meaningful opportunity to be heard.
See Goss, 419 U.S. at 579, 581.
The Department notes that the Title IX regulations only require a
recipient to provide the parties with the opportunity to access
evidence that is relevant to the allegations of sex discrimination and
not otherwise impermissible. As explained in detail in the discussion
of Sec. 106.45(b)(7), these Title IX regulations require a recipient's
grievance procedures to exclude three types of evidence and questions
seeking that evidence, namely evidence that is protected under a
privilege or confidentiality, records made or maintained by a
physician, psychologist, or other recognized professional in connection
with treatment, and evidence relating to the complainant's sexual
interests or prior sexual conduct. Evidence in these categories, with
narrow exceptions as provided in Sec. 106.45(b)(7), is considered
impermissible and must not be accessed, considered, disclosed, or
otherwise used regardless of whether it is relevant.
With respect to redactions, these final regulations require a
recipient to make certain disclosures of personally identifiable
information to the parties, including access to the evidence that is
relevant to the allegations of sex discrimination and not otherwise
impermissible. See Sec. Sec. 106.45(f)(4), 106.46(e)(6). A recipient
must redact (or otherwise refrain from disclosing) information that is
impermissible under Sec. 106.45(b)(7); however, a recipient must not
redact information or evidence that is relevant to the allegations of
sex discrimination and not otherwise impermissible because such
redaction would infringe on the right of the parties to receive access
to the relevant and not otherwise impermissible evidence, as well as on
the parties' due process rights. As noted above, the Department has
previously recognized situations in which FERPA permits the unredacted
disclosure of education records related to disciplinary proceedings.
When there is a direct conflict and redactions would preclude
compliance with Title IX obligations, the GEPA override would require
that the recipient comply with Title IX. To the extent that FERPA would
require the redaction of personally identifiable information in
education records, the
[[Page 33538]]
Department takes the position that principles of due process and
fundamental fairness require the disclosure of unredacted information
to the parties that is relevant to the allegations and not otherwise
impermissible. Accordingly, the constitutional override and the GEPA
override justify the disclosure to the parties of unredacted personally
identifiable information that is relevant to the allegations of sex
discrimination and not otherwise impermissible, even if the disclosure
is not consistent with FERPA. For additional explanation of redactions
within Title IX grievance procedures, see the discussions of Sec. Sec.
106.45(b)(5), (f)(4), and 106.46(e)(6). For an explanation of the types
of evidence that are impermissible under these Title IX regulations
regardless of relevance, see the discussion of Sec. 106.45(b)(7).
As explained further in the discussion of Sec. 106.44(j), in
response to commenters' concerns regarding confidentiality and the need
to limit disclosures under Title IX to prevent sex discrimination,
including sex-based harassment and retaliation, the Department has
revised Sec. 106.44(j). That provision prohibits a recipient from
disclosing personally identifiable information that a recipient obtains
in the course of complying with this part, with limited exceptions that
are detailed in the discussion of Sec. 106.44(j). Relevant to the
comments summarized here, Sec. 106.44(j)(5) allows a recipient to make
a disclosure that is permitted by FERPA to the extent such disclosure
is not otherwise in conflict with Title IX or this part. FERPA permits
disclosures in limited circumstances. See, e.g., 34 CFR 99.31(a)(2),
(14). For further explanation of when a recipient may disclose
personally identifiable information obtained in the course of complying
with this part, including when a recipient can make disclosures that
would be permitted by FERPA, see the discussion of Sec. 106.44(j).
FERPA sets forth detailed requirements regarding when and how a
recipient can disclose personally identifiable information from
education records. FERPA neither authorizes nor restricts a student
from redisclosing their own education records. It would not be
appropriate to apply the FERPA provisions that govern disclosures by
recipients to redisclosures made by parties and their advisors, as
suggested by a commenter; however, these final Title IX regulations
require recipients to take reasonable steps to prevent and address the
parties' and their advisors' unauthorized disclosures of evidence.
Sec. Sec. 106.45(f)(4)(iii), 106.46(e)(6)(iii). These steps may
include restrictions on the parties' and advisors' ability to
redisclose the information. The interaction between FERPA and the Title
IX regulatory provisions that require disclosure of evidence is
explained in greater detail in the discussions of Sec. Sec.
106.45(f)(4) and 106.46(e)(6).
Changes: None.
Interaction Between FERPA and Title IX by Type of Recipient
Comments: Some commenters asked the Department to clarify Title
IX's requirements for sharing information that qualifies as an
education record under FERPA within elementary schools and secondary
schools, and one commenter recommended that the Department
differentiate the procedures for elementary schools and secondary
schools, when appropriate, to safeguard the privacy of these students.
Other commenters urged the Department to acknowledge the privacy
and autonomy rights of students at postsecondary institutions, who have
their own privacy rights under FERPA.
Discussion: FERPA provides certain rights for parents and guardians
regarding their children's education records. When a student reaches 18
years of age or attends an institution of postsecondary education at
any age, the student becomes an ``eligible student,'' and all rights
under FERPA transfer from the parent to the student. See 34 CFR 99.3,
99.5(a)(1). The Department's Student Privacy Policy Office (SPPO)
administers FERPA. SPPO has issued guidance regarding parents' rights
under FERPA. See, e.g., U.S. Dep't of Educ., Student Privacy Policy
Office, A Parent Guide to the Family Educational Rights and Privacy Act
(FERPA) (July 2021), https://studentprivacy.ed.gov/resources/parent-guide-family-educational-rights-and-privacy-act-ferpa. SPPO has also
issued guidance regarding eligible students' rights under FERPA. See,
e.g., U.S. Dep't of Educ., Student Privacy Policy Office, An Eligible
Student Guide to the Family Educational Rights and Privacy Act (FERPA)
(Mar. 2023), https://studentprivacy.ed.gov/resources/eligible-student-guide-family-educational-rights-and-privacy-act-ferpa. Nothing in these
Title IX regulations alters the distinction between the rights of
parents and the rights of eligible students under FERPA.
The Department notes that, in certain respects, these Title IX
regulations distinguish between elementary school and secondary school
students and postsecondary students. For example, with regard to
handling sex-based harassment complaints, Sec. 106.45 provides the
requirements for grievance procedures for elementary schools and
secondary schools, whereas Sec. 106.46, in addition to Sec. 106.45,
provides the requirements for those complaints involving a
postsecondary student. The notification requirements in Sec. 106.44(c)
also vary based on whether the recipient is an elementary school or
secondary school, or a postsecondary institution. Section 106.45
contains the Title IX disclosure requirements that apply to elementary
schools and secondary schools, principally at Sec. 106.45(c) (notice
of allegations), (f)(4) (access to the relevant and not otherwise
impermissible evidence or an accurate description of that evidence),
and (h)(2) (notification of determination whether sex discrimination
occurred). Section 106.46 contains disclosure requirements that, in
addition to the disclosure requirements in Sec. 106.45, apply to sex-
based harassment complaints involving a postsecondary student,
principally at Sec. Sec. 106.46(c) (notice of allegations), (e)(6)
(access to the relevant evidence or a written investigative report),
and 106.45(h) (written determination whether sex-based harassment
occurred). As discussed above, based on the GEPA and constitutional
overrides, an elementary school, secondary school, or postsecondary
school must comply with its Sec. 106.45, and if applicable Sec.
106.46, disclosure requirements even when such disclosures conflict
with FERPA.
Changes: None.
Interaction Between FERPA and Title IX Regarding Students With
Disabilities
Comments: One commenter expressed concern that the Title IX
Coordinator might not have a legitimate educational interest under
FERPA to access a student party's education records, including
documents related to special education services, while another
commenter viewed FERPA's exception for legitimate educational interests
as resolving any concerns about the interaction between the proposed
Title IX regulations and FERPA.
Discussion: Section 106.8(e) requires a Title IX Coordinator to
take certain steps if a party is a student with a disability. If the
party is an elementary or secondary student with a disability, the
Title IX Coordinator must consult with one or more members of the group
of persons responsible for the student's placement decision, as
appropriate, to ensure that the recipient complies with IDEA and
Section 504 requirements during the grievance procedures. If the party
is a postsecondary student with a disability, the Title IX Coordinator
may consult, as appropriate, with the
[[Page 33539]]
individual or office that the postsecondary institution has designated
to provide support to students with disabilities to help comply with
Section 504. FERPA permits ``school officials'' to access personally
identifiable information from education records without the parent's or
eligible student's prior written consent, provided that the recipient
has determined that the officials have a ``legitimate educational
interest'' in the information. 34 CFR 99.31(a)(1)(i)(A). FERPA requires
a recipient to specify the criteria for determining who constitutes a
``school official'' and what the recipient considers to be a
``legitimate educational interest'' in the recipient's annual
notification of rights under FERPA. 34 CFR 99.7(a)(3)(iii). The
Department has recognized that ``[t]ypically, a school official has a
legitimate educational interest if the official needs to review an
education record in order to fulfill his or her professional
responsibility.'' U.S. Dep't of Educ., Student Privacy Policy Office, A
Parent Guide to the Family Educational Rights and Privacy Act (FERPA)
(July 2021), https://studentprivacy.ed.gov/resources/parent-guide-family-educational-rights-and-privacy-act-ferpa. To the extent that a
Title IX Coordinator obtains access to personally identifiable
information from the education records of a party with a disability to
comply with Sec. 106.8(e), the Department views this access as a
legitimate educational interest. Accordingly, to comply with both FERPA
and Title IX, a recipient must establish criteria in its annual
notification of FERPA rights to permit its Title IX Coordinator to
constitute a school official with legitimate educational interests when
performing functions to carry out Sec. 106.8(e).
Changes: None.
Interaction Between FERPA and Title IX Regarding Sexual Orientation,
Gender Identity, and Pregnancy
Comments: Some commenters expressed concern that the Title IX
regulations would authorize schools to withhold information from
parents relating to their child's sexual orientation and gender
identity that parents would otherwise be entitled to under FERPA, while
other commenters asked the Department to make clear that Title IX
overrides FERPA when disclosures about a student's sex, sex
characteristics, pregnancy or related conditions, sexual orientation,
or gender identity could put the student in danger, could create a
chilling effect, or could result in sex-based harassment or
retaliation.
Discussion: These Title IX regulations do not interfere with a
parent's or guardian's rights under FERPA to obtain records or access
information involving their child. Additional comments and discussion
regarding parental rights and issues related to sexual orientation,
gender identity, and pregnancy are addressed in the discussion of
Sec. Sec. 106.6(g) and 106.44(j), as well as in Section III and
Section IV.
Changes: None.
2. Section 106.6(g) Exercise of Rights by Parents, Guardians, or Other
Authorized Legal Representatives
Comments: The Department received several comments in support of
the proposed addition of an authorized legal representative in Sec.
106.6(g). Some commenters agreed that including an authorized legal
representative would be important to recognize the role of court-
appointed educational representatives and other legally authorized
decisionmakers for youth in out-of-home care, and others believed this
addition to Sec. 106.6(g) may be helpful for students with
disabilities.
The Department also received comments opposed to the proposed
changes to Sec. 106.6(g), requesting that the Department retain Sec.
106.6(g) as written in the 2020 amendments. Some commenters generally
asserted that proposed Sec. 106.6(g) would exceed the Department's
authority and would be inconsistent with Title IX, case law, and the
Constitution.
Some commenters disagreed with the proposed addition of
``authorized legal representative'' for reasons including that doing so
would reduce the role of a parent; would be too vague and could allow
teachers, administrators, or advocacy organizations to be a child's
representative or to bring a claim against a parent; would encourage
students to disregard parental authority; and would give a child the
responsibilities of an adult parent. Objections also included that
proposed Sec. 106.6(g) would allow a legal representative to make
decisions without a parent's consent, including decisions related to a
student's medical care. Some commenters suggested that the Department
modify proposed Sec. 106.6(g) to include a hierarchy that prioritizes
the rights of a parent over the rights of an authorized legal
representative, and some commenters asked the Department to clarify how
an authorized legal representative is selected. One commenter asked the
Department to add language to proposed Sec. 106.6(g) to ensure that an
authorized legal representative can communicate with a recipient on
behalf of their party. Some commenters asked the Department to define
``authorized legal representative.''
Some commenters asked the Department to clarify whether proposed
Sec. 106.6(g) would require parental notification when a recipient
becomes aware of conduct that may constitute sex-based harassment.
Other commenters believed that proposed Sec. 106.6(g) would improperly
allow postsecondary institutions to exclude parents from their
children's disciplinary proceedings. Commenters expressed differing
views about the interaction between proposed Sec. 106.6(g) and FERPA,
with one commenter stating that proposed Sec. 106.6(g) would not
conflict with FERPA and some commenters stating that it would.
Discussion: The revisions the Department proposed to Sec. 106.6(g)
clarify that an authorized legal representative, as with a parent or
guardian, also has the right to act on behalf of a complainant,
respondent, or other person, subject to Sec. 106.6(e), including but
not limited to making a complaint of sex discrimination through a
recipient's grievance procedures. As the Department explained in the
2020 amendments, Sec. 106.6(g) was added to acknowledge ``the legal
rights of parents and guardians to act on behalf of a complainant,
respondent, or other individual with respect to exercise of rights
under Title IX.'' 85 FR 30136. This rationale holds true for the
addition of ``authorized legal representative'' to Sec. 106.6(g),
which ensures the applicability of this section to an individual who is
legally authorized to act on behalf of a certain minor, such as a
foster parent caring for a youth in out-of-home care but who is not
necessarily deemed a parent or guardian.
Section 106.6(g) remains consistent with the 2020 amendments, which
provided that, although the student would remain the complainant or
respondent in 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. As further explained in the 2020 amendments,
when the party is a minor or has an appointed guardian, ``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. The 2020
amendments also clarified that the regulations do not
[[Page 33540]]
alter a parent's or guardian's legal right to act on behalf of the
complainant or respondent. Id. at 30136. Specifically, ``[t]he extent
to which a recipient must abide by the wishes of a parent, especially
in circumstances where the student is expressing a different wish from
what the student's parent wants, depends on the scope of the parent's
legal right to act on the student's behalf.'' Id.; see also id. at
30453 (``Whether or not a parent or guardian has the legal right to act
on behalf of an individual would be determined by State law, court
orders, child custody arrangements, or other sources granting legal
rights to parents or guardians.'').
The Department disagrees with commenters who view Sec. 106.6(g) as
outside the Department's authority and inconsistent with Title IX, case
law, and the U.S. Constitution. The Department was unable to find, and
commenters did not provide, any case law suggesting that Sec. 106.6(g)
is inconsistent with the U.S. Constitution or outside the authority
granted by Congress for the Department to issue regulations to
effectuate Title IX's prohibition on sex discrimination in education
programs or activities that receive Federal financial assistance.
The Department declines to define ``authorized legal
representative'' or describe the process for selecting an authorized
legal representative because specific terminology and procedures may
differ across States and contexts; nor is it necessary to expand upon
an authorized legal representative's authority to communicate on behalf
of their party because that will depend on the scope of legal authority
under which the authorized legal representative is permitted to act.
Whether an individual may serve as the authorized legal representative
of a child, and the scope of that authority, would be determined by
State law, court orders, child custody arrangements, or other sources
granting legal rights to guardians or legal representatives.
The Department appreciates the opportunity to clarify that the
addition of ``authorized legal representative'' to Sec. 106.6(g) does
not grant parental authority to any individual or derogate parental
rights. Instead, this language acknowledges the role of a court-
appointed educational representative or other individual who has been
determined by sources such as State law, court orders, or child custody
arrangements to have the authority to act on behalf of, for example, a
youth in out-of-home care, in matters addressed by the Title IX
regulations, consistent with their legally granted authority. With
regard to comments stating that the addition of ``authorized legal
representative'' to Sec. 106.6(g) would allow a teacher,
administrator, or an advocacy organization to act on behalf of a
student, including with regard to medical decisions, the Department
emphasizes that this addition to Sec. 106.6(g) does not grant
permission to entities or other individuals who are not bestowed with
legal authority to act on a student's behalf. Further, this provision
is limited in scope to matters addressed by the Title IX regulations,
which do not address or govern decisions about medical care. Because
Sec. 106.6(g) does not confer parental rights upon any individual, the
Department also declines to add a hierarchy to this section (i.e., to
prioritize the rights of parents over authorized legal
representatives).
The Department disagrees that recognizing the legally granted
authority of an authorized legal representative to act on behalf of
certain youth encourages students to disregard parental authority or
forces a child to assume responsibilities of an adult; rather, it
ensures that students whose rights are committed to an authorized legal
representative may still be able to participate in Title IX proceedings
through that representative. Section 106.6(g) of the 2020 amendments
does not require notification to parents, and the Department declines
to do so now because the Department believes additional public comment
would be appropriate before making such changes related to parental
notification. The Department notes that nothing in these regulations
requires or prohibits a recipient from notifying a parent, guardian, or
authorized legal representative of a minor student's complaint alleging
sex discrimination so they can exercise their rights to act on behalf
of the minor student. Additionally, as explained in greater detail in
the discussion of Sec. 106.44(j), that paragraph explicitly permits a
recipient to disclose personally identifiable information obtained in
the course of complying with this part to a parent, guardian, or other
authorized legal representative with the legal right to receive
disclosures on behalf of the person, including a minor student, whose
personally identifiable information is at issue. Further, the
modifications that the Department has made to Sec. 106.6(g) do not
impact this section's consistency with parents' inspection and review
rights under FERPA or its implementing regulations.
Finally, with regard to comments about the application to
postsecondary students, as elaborated in the discussion of the overall
considerations and framework for Title IX's grievance procedure
requirements, and consistent with the explanation of Sec. 106.6(g) in
the 2020 amendments, a parent or guardian does not typically have legal
authority to exercise rights on behalf of a postsecondary student, by
virtue of a student's age, in contrast to any authority they or another
authorized legal representative may have for a student in elementary
school or secondary school. Section 106.6(g) does not mandate the
exclusion of a parent, guardian, or other authorized legal
representative at the postsecondary level, and the opportunity for a
postsecondary student to be accompanied by an advisor of their choice
or to have persons other than the advisor of choice be present during
any meeting or proceeding for a complaint of sex-based harassment is
clarified in the discussion of Sec. 106.46(e)(2)-(3).
Changes: The Department has made a technical change to Sec.
106.6(g) to add a reference to ``Title IX.''
3. Section 106.6(b) Preemptive Effect
Comments: Some commenters raised concerns about preemption of State
laws under proposed Sec. 106.6(b). Some commenters asserted that
Spending Clause statutes like Title IX can attach conditions to receipt
of Federal funds but do not give the Department authority to preempt
State law. Some commenters stated that the Department can only preempt
a State law to the extent a requirement is within the scope of its
congressionally delegated authority and States have clear notice as to
any conditions attached to those funds, citing Pennhurst, 451 U.S. at
1. Those commenters argued, for example, that the Department cannot
preempt State law that discriminates based on gender identity because
recipients did not have clear notice that Title IX prohibits gender
identity discrimination. A group of commenters asserted that preemption
of State law would violate the ``presumption against preemption''
because it would regulate ``in a field which States have traditionally
occupied,'' citing, e.g., Wyeth v. Levine, 555 U.S. 555, 565 (2009).
Some commenters expressed concern that proposed Sec. 106.6(b) is
contrary to the Tenth Amendment, which leaves matters not delegated to
the Federal government, such as education, to the States.
Some commenters urged the Department to allow State and local
governments and schools to make their own decisions that reflect their
community standards and local demographic interests and priorities or
preserve their existing policies and
[[Page 33541]]
procedures to prevent and address sex discrimination. Some commenters
urged the Department to maintain current Sec. 106.6(h) and (b)
because, under the current versions of those provisions, a narrower set
of State laws would be preempted.
Some commenters argued that the First Amendment bars the Federal
government from regulating protected speech or preempting State free
speech laws.
Some commenters supported proposed Sec. 106.6(b) because it would
allow schools to comply with State or local laws that provide greater
protections against sex discrimination. Other commenters expressed
concern that proposed Sec. 106.6(b) would permit schools to comply
with State laws that provide greater protection against sex
discrimination but would not permit schools to comply with State laws
that provide greater protection for students who were alleged to have
engaged in misconduct. Some commenters asserted that the reference to
laws that provide ``greater protection against sex discrimination'' is
too vague for a recipient to determine whether a State or local law is
preempted. The commenter stated that it would be helpful for the
Department to more thoroughly explain how it would analyze such State
and local laws to determine whether they conflict with the proposed
regulations and whether such a conflict is preempted.
A number of commenters urged the Department to clarify whether and
how the proposed regulations would preempt conflicting State laws and
policies related to sexual orientation, gender identity, parental
rights, or abortion. Commenters also asked the Department to clarify
how the proposed regulations would interact with conflicting court
decisions, including regarding constitutional due process.
Discussion: The Department appreciates the variety of views
expressed by commenters regarding the proposed preemption provision.
After thoroughly considering the comments, the Department maintains
that the preemption provision in the final regulations, with the
modification noted below, appropriately ensures the final regulations
cover the full scope of Title IX. Thus, final Sec. 106.6(b) does not
extend beyond the Department's authority to promulgate regulations to
effectuate Title IX.
The Department notes, first, that all 50 States have accepted
Federal funding for education programs or activities and are subject to
Title IX as to those programs and activities. Compliance with Title IX
and its implementing regulations is ``much in the nature of a contract:
in return for Federal funds, the States agree to comply with federally
imposed conditions.'' 85 FR 30458 (citing Pennhurst, 451 U.S. at 17).
Nothing in these regulations requires the abrogation of a State's
sovereign powers because States retain the ability to address
discrimination on the basis of sex in the educational realm in a manner
that does not conflict with these final regulations. See Cameron v. EMW
Women's Surgical Ctr., P.S.C., 595 U.S. 267, 277 (2022) (``Paramount
among the States' retained sovereign powers is the power to enact and
enforce any laws that do not conflict with federal law.'' (citing U.S.
Const., art. VI, Sec. 2)). The Department also notes that courts have
long held that Spending Clause statutes, like Title IX, can preempt
inconsistent State laws by operation of the Supremacy Clause. See,
e.g., Planned Parenthood of Hous. v. Sanchez, 403 F.3d 324, 329-37 (5th
Cir. 2005) (using ``the terminology and framework of preemption in
analyzing'' a claim that a State law conflicts with a Federal statute
enacted under the Spending Clause); Townsend v. Swank, 404 U.S. 282,
286 (1971) (``state eligibility standard that excludes persons eligible
for assistance under federal AFDC standards violates the Social
Security Act and is therefore invalid under the Supremacy Clause'');
King v. Smith, 392 U.S. 309 (1968); O'Brien v. Mass. Bay Transp. Auth.,
162 F.3d 40 (1st Cir. 1998); cf. Health & Hosp. Corp. of Marion Cnty.
v. Talevski, 599 U.S. 166, 188 (2023) (holding that Sec. 1983
litigation to enforce a Spending Clause statute is not necessarily
precluded by a separate administrative enforcement scheme). This
position is consistent with the 2020 amendments, which state ``[t]he
Department through these final regulations, is not compelling the
States to do anything. In exchange for Federal funds, recipients--
including States and local educational institutions--agree to comply
with Title IX and regulations promulgated to implement Title IX as part
of the bargain for receiving Federal financial assistance, so that
Federal funds are not used to fund sex-discriminatory practices. As a
consequence, the final regulations are consistent with the Tenth
Amendment.'' 85 FR 30459. Similarly here, these regulations simply
reiterate that longstanding principle, which in the Title IX context
means that a recipient may not adopt a policy or practice that
contravenes Title IX or this part even if such a policy or practice is
required by a conflicting State law.
The Department also disagrees with the contention that a
presumption against preemption prohibits the promulgation of Sec.
106.6(b). The Supreme Court has explicitly held that Federal law may
supersede State law, even in a field historically occupied by States,
when ``that [is] the clear and manifest purpose of Congress.'' Wyeth,
555 U.S. at 565 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996); Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963); Rice v.
Santa Fe Elevator Corp., 331 U.S. 218 (1947)); see also Free v. Bland,
369 U.S. 663, 666 (1962) (``[A]ny state law, however clearly within a
State's acknowledged power, which interferes with or is contrary to
federal law, must yield.''). Title IX's purpose is clear in the text of
the statute: to ensure 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); as is Congress's intent to provide the Department broad
authority to issue regulations to effectuate the statute's purpose, see
20 U.S.C. 1682 (authorizing Federal agencies to issue regulations
consistent with achievement of the objectives of the statute); see also
Gebser, 524 U.S. at 292. Accordingly, Congress has ``unambiguously''
``impose[d] a condition on the grant of federal moneys'' in the context
of Title IX. Pennhurst, 451 U.S. at 17. Indeed, the Supreme Court has
reaffirmed that Congress intended Title IX's prohibition on sex
discrimination to have a broad reach, see, e.g., Jackson, 544 U.S. at
175 (``Courts must accord Title IX a sweep as broad as its language''
(quoting N. Haven Bd. of Educ., 456 U.S. at 521) (internal quotation
marks omitted)); and specifically held that State law may be preempted
when its purpose or effect conflicts with the objectives of Federal
civil rights law. See, e.g., Felder v. Casey, 487 U.S. 131, 138 (1988)
(preempting a State's notice-of-claim statute when it conflicted in
purpose and effect with the remedial objectives of 42 U.S.C. 1983); cf.
Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1101 (D.
Minn. 2000) (citing Felder while denying defendant's motion for summary
judgment on plaintiff's Title IX claim). Because Sec. 106.6(b) limits
preemption to instances in which State or local law conflicts with
Title IX or this part, this provision is consistent with preemption
doctrine as articulated by the Supreme Court.
Second, the Supreme Court has made clear that State laws can be
preempted by Federal regulations. See, e.g.,
[[Page 33542]]
Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 713
(1985) (``state laws can be pre-empted by federal regulations as well
as federal statutes''); Geier v. Am. Honda Motor Co., 529 U.S. 861, 873
(2000).
Third, we disagree with the suggestion that the Department lacks
the delegated authority to promulgate Sec. 106.6(b). By statute,
Congress has conferred authority on the Department to promulgate
regulations to effectuate the purposes of Title IX. 20 U.S.C. 1682. The
Supreme Court has noted that ``[t]he express statutory means of
enforc[ing] [Title IX] is administrative,'' as the ``statute directs
Federal agencies that distribute education funding to establish
requirements to effectuate the non-discrimination mandate, and permits
the agencies to enforce those requirements through `any . . . means
authorized by law,' including ultimately the termination of Federal
funding.'' Gebser, 524 U.S. at 280-81 (quoting 20 U.S.C. 1682). The
Supreme Court has also explained that ``[b]ecause Congress did not list
any specific discriminatory practices when it wrote Title IX, its
failure to mention one such practice does not tell us anything about
whether it intended that practice to be covered.'' Jackson, 544 U.S. at
175; see also Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 619
n.18 (4th Cir. 2020), as amended (Aug. 28, 2020). As described in more
detail in the discussions of Sec. Sec. 106.10 and 106.31(a), the
Supreme Court has held that sex discrimination, as prohibited by Title
VII, encompasses discrimination based on sexual orientation and gender
identity, Bostock v. Clayton Cnty., 590 U.S. 644, 659-62 (2020), and
lower courts have applied this reasoning to Title IX. Further, this
rulemaking process has afforded recipients notice and opportunity to
comment, as well as the opportunity to decline Federal funding.
Fourth, consistent with the Department's position in the 2020
amendments and Supreme Court preemption jurisprudence, in the event of
an actual conflict between State or local law and Title IX or its
implementing regulations, a conflicting State law would not permit a
recipient's noncompliance with Title IX. The Department appreciates
that many States, as commenters noted, have laws that address sex
discrimination, including sex-based harassment, sexual violence, sex
offenses, and other misconduct that negatively impacts students' equal
educational access. Nothing in these final regulations precludes a
State, or an individual recipient, from continuing to address such
matters while also complying with these final regulations. The
Department declines the suggestion to exempt a recipient from certain
requirements in the final regulations to the extent they already have
comprehensive policies and procedures on sex discrimination. The
Department believes that the final regulations provide reasonable
options for a recipient to comply in ways that are equitable for the
parties, while accommodating each recipient's administrative structure,
education community, discretionary decisions, community standards, and
applicable Federal and State case law and State or local legal
requirements. In addition, the Department notes that nothing in the
final regulations precludes a recipient from retaining its existing
policies and procedures but making modifications as needed to add any
requirements from the final regulations.
Generally, a State law would create a conflict with the final
regulations if, for example, it requires a recipient to discriminate
based on a student's sexual orientation or gender identity. Consistent
with the 2020 amendments, in such a circumstance, Title IX or its
implementing regulations would preempt the conflicting State law. As
the Department explained in 2020:
Under conflict preemption, a federal statute implicitly
overrides state law . . . when state law is in actual conflict with
federal law either because it is impossible for a private party to
comply with both state and federal requirements or because state law
stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress. It is well-established
that state laws can be pre-empted by federal regulations as well as
by federal statutes. The Supreme Court has held: Pre-emption may
result not only from action taken by Congress itself; a federal
agency acting within the scope of its congressionally delegated
authority may pre-empt state regulation. The Department is acting
within the scope of its congressionally delegated authority in
promulgating these final regulations under Title IX to address
sexual harassment as a form of sex discrimination.
85 FR 30454-55 (internal quotation marks omitted) (citing Freightliner
Corp. v. Myrick, 514 U.S. 280, 287 (1995); Hillsborough Cnty., 471 U.S.
at 713; Geier, 529 U.S. at 873).
Nonetheless, the Department declines to maintain the preemption
provisions from the 2020 amendments. As explained in the July 2022
NPRM, the final regulations revise Sec. 106.6(b) and eliminate
preexisting Sec. 106.6(h) to clarify that the preemptive effect of
these regulations is neither confined to circumstances in which sex
discrimination may have limited a student's or applicant's eligibility
to practice any occupation or profession as expressed in preexisting
Sec. 106.6(b), nor to the three sections of the Title IX regulations
enumerated in preexisting Sec. 106.6(h). 87 FR 41405. Rather, final
Sec. 106.6(b) makes clear in a simple and comprehensive statement that
Title IX and its implementing regulations ``preempt any State or local
law with which there is a conflict,'' see id. (emphasis in original),
which as discussed above, is in accordance with the text and purpose of
the statute.
With respect to a commenter's question about the regulations'
intersection with conflicting case law on due process, the Department
notes Sec. 106.6(d)(2) and (3) specifies that nothing in the Title IX
regulations requires a recipient to deprive a person of any rights that
would otherwise be protected from government action under the Due
Process Clauses of the Fifth and Fourteenth Amendments or restrict any
other rights guaranteed against government action by the U.S.
Constitution.
Similarly, the Department appreciates comments about the
regulations' intersection with the First Amendment and agrees that
these final regulations do not preempt First Amendment rights. As
discussed above in Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2), these final regulations should
not be interpreted in ways that would lead to the suppression of
protected speech by a public or private recipient. See also 2003 First
Amendment Dear Colleague Letter. Additionally, Sec. 106.6(d)(1) makes
clear that nothing in the Title IX 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. Accordingly,
nothing in Title IX or this part would preempt a State law that
safeguards speech protected by the First Amendment, including as
applied to a private recipient.
However, a recipient's obligation to comply with Title IX and this
part is not obviated or alleviated by a conflicting State law that
governs speech unprotected by the U.S. Constitution. The Department
disagrees with the contention that the First Amendment prohibits
Federal law from preempting a conflicting State or local law governing
speech. Commenters did not cite, and the Department is unaware of, any
such precedent. Instead, commenters cited: inapposite legal authority;
\24\ cases that hold enforcement
[[Page 33543]]
of State or local law unconstitutional under the First Amendment; \25\
State law that prohibits public and private schools from limiting
speech that is protected under the First Amendment; \26\ and a court
opinion interpreting that State law.\27\
---------------------------------------------------------------------------
\24\ Commenters cited Louisiana Independent Pharmacies Ass'n v.
Express Scripts, Inc., 41 F. 4th 473, 479 (5th Cir. 2022)
(discussing how to establish Federal question jurisdiction over a
claim brought in State court).
\25\ Commenters cited Tinker, 393 U.S. at 511; Barnette, 319
U.S. at 642; Wooley v. Maynard, 430 U.S. 705, 713 (1977); City of
Hoboken v. Chevron Corp., 45 F.4th 699, 709 (3d Cir. 2022);
Meriwether, 992 F.3d at 512. But cf. Meriwether, 992 F.3d at 511
(stating that a public university's failure to show evidence of a
hostile environment indicated that Title IX compliance was not
implicated by university's disciplinary action against professor and
reversing dismissal of professor's free speech claims).
\26\ Commenters cited Cal. Educ. Code Sec. Sec. 48950, 94367.
\27\ Commenters cited Yu v. University of La Verne, 196 Cal.
App. 4th 779, 769, 791 (2011) (denying de novo review because
student's claim did not implicate the First Amendment, but holding
university violated Cal. Educ. Code Sec. 94367).
---------------------------------------------------------------------------
The Department appreciates commenters' input on the proposed
exception for State and local laws that provide ``greater protections
against sex discrimination,'' including concerns that the language was
vague and would be difficult for a recipient to implement. The
Department agrees the proposed language could cause confusion and
believes the issue of whether the final regulations preempt a State or
local law should focus on whether it conflicts with Title IX or the
final regulations. Therefore, the Department has removed the ``greater
protections'' language from the final regulations. However, nothing in
the final regulations prevents a recipient from complying with a State
law, including a State law designed to address sex discrimination, as
long as compliance would not conflict with any requirement in the final
regulations.
The Department acknowledges the request for guidance regarding how
the final regulations may preempt particular State and local laws. The
Department will offer technical assistance, as appropriate, to promote
compliance with these final regulations, but refrains from offering
opinions about how the regulations apply to specific facts or specific
State and local laws without first conducting an investigation.
Changes: The Department has eliminated the second sentence in
proposed Sec. 106.6(b) and modified the end of the first sentence to
clarify that preemption applies to any State or local law or other
requirement ``that conflicts with Title IX or this part.''
Additionally, the Department has made a technical change to add a
reference to ``Title IX,'' to clarify that this provision applies to
conflicts with the statute as well as its implementing regulations.
II. Recipient's Obligation To Operate Its Education Program or Activity
Free From Sex Discrimination
A. Administrative Requirements
1. Section 106.8(a) Designation of a Title IX Coordinator
Comments: Some commenters supported proposed Sec. 106.8(a) because
it would centralize the recipient's compliance efforts, ensure
accountability and efficiency, and minimize internal conflicts and
confusion that could delay compliance. Some commenters supported
proposed Sec. 106.8(a) because it would allow for distribution of a
Title IX Coordinator's duties to skilled and knowledgeable designees
who can support the Title IX Coordinator in identifying trends,
coordinating training, and monitoring and addressing barriers to
reporting sex discrimination, thereby promoting effective enforcement
of Title IX.
Some commenters expressed concern that the proposed regulations
would shift compliance responsibility from the recipient to an
individual Title IX Coordinator. Other commenters asked for
clarification as to the meaning of the term ``oversight,'' when the
regulations permit delegation of the Title IX Coordinator's duties, and
when such duties can be delegated to an independent contractor. Some
commenters raised concerns about the prescriptiveness and burden of the
Title IX Coordinator's role as outlined in the proposed regulations,
including with respect to duties contemplated by proposed Sec. Sec.
106.40(b), 106.44(b), 106.44(f), 106.44(k), 106.45(d)(4)(iii), and
106.45(h)(3).
Some commenters asked the Department to require each school or
building within a multi-school or multi-building recipient to designate
its own Title IX Coordinator and publicize that person's contact
information.
Some commenters suggested the Department provide guidance for Title
IX Coordinators after the final regulations are issued.
Discussion: The Department acknowledges commenters' support for
Sec. 106.8(a) and agrees that it furthers centralized, accountable,
and effective compliance with Title IX.
The Department appreciates the opportunity to clarify that the
recipient itself is responsible for compliance with obligations under
Title IX, including any responsibilities assigned to the recipient's
Title IX Coordinator under these final regulations. Specifically, the
final regulations make clear that Title IX and its implementing
regulations apply to ``every recipient and to all sex discrimination
occurring under a recipient's education program or activity in the
United States,'' with only limited exceptions. See Sec. 106.11.
Additionally, Sec. 106.8(a)(1) of the final regulations underscores
that the recipient is ultimately responsible for compliance with the
regulations, providing that ``[e]ach recipient'' is responsible for
designating a Title IX Coordinator.
Consistent with longstanding regulations and Department policy,
these final regulations permit a recipient to designate more than one
employee to serve as a Title IX Coordinator, but the recipient is
responsible for designating one of its Title IX Coordinators to retain
ultimate oversight. The Department explained in the July 2022 NPRM that
by having one Title IX Coordinator oversee designees, the Title IX
Coordinator would be responsible for ensuring consistent Title IX
compliance and would be able to identify trends across the recipient's
education program or activity and coordinate training or educational
programming responsive to those trends. 87 FR 41424.
With respect to concerns about the meaning of the term
``oversight,'' the Department clarifies that this word is intended to
ensure that a single individual is vested with the responsibility for
ensuring a recipient's consistent compliance with its responsibilities
under Title IX and this part and has revised the final regulations to
make that clear. Oversight does not necessarily require a Title IX
Coordinator to have a supervisory relationship over other Title IX
Coordinators or designees. The Department declines to further specify
when a recipient or Title IX Coordinator may delegate Title IX
Coordinator duties to another employee or independent contractor. As
detailed in the July 2022 NPRM, the decisions about whether and when to
delegate will often be recipient- or fact-specific, and depend on
things like the number of students enrolled, persons employed, places
services are provided, or variety of activities sponsored. 87 FR 41424.
In the Department's view, given the number of factors at play,
recipients are best situated to determine when delegation is
appropriate.
Permission to delegate responsibilities to designees enables a
recipient to assign duties to individuals who are best positioned to
perform them, avoid actual or perceived conflicts of interest, and
align with the recipient's administrative structure. The customizable
and adaptable system of
[[Page 33544]]
delegation set out in Sec. 106.8(a) also addresses commenter concerns
regarding prescriptiveness and burden of the Title IX Coordinator's
role throughout the final regulations by providing a recipient with
greater flexibility to utilize resources in the manner that works best
for its school community. Some recipients may need more than one person
to coordinate the recipient's compliance with Title IX, but the
Department prefers to leave recipients the flexibility to decide how to
effectively comply with Title IX and the final regulations. This
flexibility also ameliorates concerns that Sec. 106.8(a) is overly
prescriptive or burdensome. By allowing a recipient to delegate (or
permitting a Title IX Coordinator to delegate) specific duties to one
or more designees, final Sec. 106.8(a)(2) affords a recipient the
ability to deploy resources in a manner that works best for them. At
the same time, however, the final regulations require each recipient to
designate at least one employee as its Title IX Coordinator and provide
that the Title IX Coordinator must be authorized to coordinate the
recipient's efforts to comply with its responsibilities under Title IX
and this part. And if the recipient has more than one Title IX
Coordinator, the final regulations provide that the recipient must
designate one to retain ultimate oversight and ensure the recipient's
compliance with those responsibilities. This oversight structure is
consistent with the longstanding requirement to designate an employee
to coordinate the recipient's Title IX compliance, see 40 FR 24139, and
with the Department's view, expressed in the 2020 amendments, see 85 FR
30464, that a Title IX Coordinator must be authorized to coordinate a
recipient's efforts to comply with Title IX.
With respect to comments about requiring each school or building
within a multi-school or multi-building recipient to designate its own
Title IX Coordinator, in the July 2022 NPRM, the Department explained
that proposed Sec. 106.8(a) would permit a Title IX Coordinator to
assign a designee to oversee Title IX compliance for a component of a
recipient, such as a school or building. 87 FR 41424. The Department's
Title IX regulations have never required a recipient to designate a
separate employee to oversee the recipient's Title IX compliance with
respect to each school or building, and the Department declines to do
so through this rulemaking. The Department maintains that decisions of
this sort are best left to the recipient given various fact-specific
considerations, including whether such designation is necessary to
ensure compliance with Title IX's nondiscrimination mandate. In
addition, the Department did not propose such a requirement in the July
2022 NPRM and declines to do so in this rulemaking without ensuring
that the public has had a full notice and opportunity to comment on
such a proposal, especially in light of the potential costs and
administrative burdens.
The Department recognizes that it is important for members of a
recipient's community to be able to identify a recipient's Title IX
Coordinator. To address concerns that students, staff, or parents might
not know how to contact the Title IX Coordinator, Sec.
106.8(c)(1)(i)(C) of the final regulations maintains the requirement
that a recipient must publish the name or title, office address, email
address, and telephone number of the recipient's Title IX Coordinator.
Nothing in the final regulations prevents a recipient from publicizing
contact information for others appointed to coordinate compliance.
The Department acknowledges that supporting recipients and Title IX
Coordinators in implementing these regulations is important. The
Department will offer technical assistance and guidance, as
appropriate, to promote compliance with these final regulations.
Changes: Section 106.8(a)(1) has been revised to refer to ``a''
Title IX Coordinator rather than ``the'' Title IX Coordinator and to
specify that, if a recipient has more than one Title IX Coordinator,
the recipient must designate one of its Title IX Coordinators to retain
``ultimate oversight'' and ``ensure the recipient's consistent
compliance'' with Title IX. The reference to multiple coordinators has
been moved from proposed Sec. 106.8(a)(2) to Sec. 106.8(a)(1) in the
final regulations. Consistent with the requirement in Sec. 106.8(a)(1)
that one Title IX Coordinator retain ultimate oversight over the
recipient's compliance responsibilities, Sec. 106.8(a)(2) has been
revised to clarify that the recipient may delegate, or permit a Title
IX Coordinator to delegate, specific duties to one or more designees.
2. Section 106.8(b) and (c) Nondiscrimination Policy, Grievance
Procedures, and Notice of Nondiscrimination
General Support and Opposition
Comments: The Department notes that proposed Sec. 106.8(c)(i)-(v)
have been redesignated as Sec. 106.8(c)(i)(A)-(E) in these final
regulations, and the following comment summaries and discussion
generally refer to these provisions in their final forms. Several
commenters supported proposed changes that would clarify and streamline
requirements for a recipient to adopt and publish a policy prohibiting
sex discrimination, comprehensive nondiscrimination policies, and
grievance procedures for the equitable resolution of complaints of all
forms of sex discrimination. Other commenters appreciated proposed
changes that would clarify and streamline the administrative
requirements around grievance procedures and notices.
Several commenters noted the importance of informing students of
their rights and how to assert them as a means of ensuring that
students can be free from sex discrimination in a recipient's education
program or activity. Some commenters also supported providing
information on how to report sex discrimination and how to access
grievance procedures, including the name and specific contact
information of a recipient's Title IX Coordinator, so that individuals
are aware of a recipient's Title IX policies and how to report sex
discrimination and can therefore resolve outstanding issues with a
recipient.
Some commenters found the proposed requirements that a recipient
adopt grievance procedures burdensome and unnecessary. One commenter
criticized that recipients have had to adopt lengthier sex-
discrimination policies to conform with the Department's changing Title
IX regulations and asserted that the Department's changing positions
make it difficult for a recipient to ensure its community understands
what Title IX requires.
Discussion: Requiring a recipient to adopt, publish, and implement
nondiscrimination policies, grievance procedures, and notices of
nondiscrimination is critical to ensuring that students and others are
protected from sex discrimination. Providing this information,
including how to report allegations of sex discrimination and contact
the Title IX Coordinator, will make members of recipient
[[Page 33545]]
communities safer and more aware of their rights and recipient
obligations.
After careful consideration of public comments and based on its own
enforcement experience, the Department maintains that requiring one
grievance procedure (meaning one, or a set of, recipient procedures
that are consistent with the requirements of Sec. 106.45, and if
applicable Sec. 106.46) with additional requirements related to sex-
based harassment complaints involving a student at a postsecondary
institution, is the best approach to ensure that a recipient handles
all sex discrimination promptly and equitably while allowing enough
flexibility to enable a recipient to account for its educational
environment (such as an elementary school, secondary school, community
college, online college, or research university).
The Department disagrees that the final regulations related to a
recipient's nondiscrimination notice, policies, and grievance
procedures are unduly burdensome. Recipients should already have some
form of notices and procedures in place because they have been required
to maintain nondiscrimination notices and grievance procedures since
1975. 40 FR 24139. The Department appreciates that having clear,
preestablished, and publicized policies and procedures is an essential
element of ensuring a fair process for all. Congress assigned to the
Department the responsibility to ensure full implementation of Title
IX, and the authority for the final regulations, including publication
of grievance procedures, stems from that congressional allocation of
responsibility. The Department appreciates the importance of having
regulations that are clear and easy for a recipient to implement. The
Department determined that these revisions will help a recipient comply
with Title IX, including by ensuring the school community is aware of
Title IX rights and obligations. For additional discussion of costs
associated with the final regulations, see the Regulatory Impact
Analysis.
A recipient's obligation does not end with adoption and publication
of a nondiscrimination policy and grievance procedure; a recipient must
actually implement both. Therefore, the Department revised Sec.
106.8(b)(1) and (2) to refer to implementation. The Department
clarifies that the addition of the word ``implement'' is simply to
ensure that nothing in Sec. 106.8(b) relieves a recipient of its
responsibility to comply with Title IX or its regulations. It does not
create additional duties beyond those specified in Title IX or its
regulations. In Sec. 106.8(b)(2), the Department changed ``third
parties'' to ``other individuals'' to align with the removal, in
response to commenter confusion, of the term ``third party'' from the
description of who can make a complaint of sex discrimination in final
Sec. 106.45(a)(2)(iv). In the interest of clarity, the Department also
revised Sec. 106.8(b)(2) to clarify that a recipient's grievance
procedures apply to complaints alleging any action prohibited by Title
IX ``or'' this part, and that an alleged action need not be expressly
prohibited by both the statute and regulations.
Changes: The Department has revised Sec. 106.8(b)(1) and (2) to
specify that a recipient must ``implement'' its Title IX
nondiscrimination policy and grievance procedures, and Sec.
106.8(b)(2) to state that a recipient's grievance procedures apply to
complaints alleging any action prohibited by Title IX ``or'' this part.
We also replaced ``third parties'' with ``other individuals'' in Sec.
106.8(b)(2) and simplified the heading for Sec. 106.8 to omit
``adoption and publication of.''
Requests To Add Protected Bases and Other Information in Sec. 106.8(b)
and (c)
Comments: Some commenters asked the Department to require a
recipient to include additional information in its nondiscrimination
policy, grievance procedures, and notice of nondiscrimination, such as
additional protected bases (e.g., pregnancy or related conditions, sex-
based distinctions related to parental status, gender identity),
specific applications of Title IX, and a statement that individuals may
have rights under other Federal, State, or local laws. Commenters
stated that this additional information would notify individuals of
their rights and how to make a complaint under Title IX; inform
educators and administrators of their Title IX responsibilities;
decrease sex-based harassment; increase student reports of sex
discrimination; and increase the effectiveness of recipient responses
to reports of sex discrimination.
Discussion: As set forth in Sec. 106.8(c)(1), the notice of
nondiscrimination, which must be published in accordance with Sec.
106.8(c)(2), notifies individuals of rights protected by Title IX and
how to make a report or a complaint under Title IX. In the Department's
view, this notice will sufficiently inform individuals of their rights
and how to make a complaint under Title IX. Similarly, the required
notice, in addition to training required under Sec. 106.8(d), will
sufficiently inform educators and administrators of their Title IX
responsibilities and adequately support reporting of sex
discrimination, including sex-based harassment, which in turn will help
ensure that a recipient can effectively respond. The Department's
rulemaking authority is based on Title IX and the Department does not
have authority to require a recipient to publish a notice of rights
under State or local laws. The Department determined that the interest
in having a concise and accessible notice outweighs the interest in
including more granular information about Title IX. However, nothing in
the final regulations precludes a recipient from enumerating the bases
of sex discrimination prohibited by Title IX or State or local laws in
its notice of nondiscrimination.
Changes: None.
Requests To Add Additional Information in the Grievance Procedures or
Notice of Nondiscrimination
Comments: The Department notes that proposed Sec. 106.8(c)(i)-(v)
have been redesignated as Sec. 106.8(c)(i)(A)-(E) in these final
regulations, and the following comment summaries and discussion
generally refer to these provisions in their final forms.
Some commenters asked the Department to consider requiring
additional information in the grievance procedures or notice of
nondiscrimination by, for example, addressing the status of
postdoctoral trainees, who are not employees; stating that a
complainant is not required to exhaust administrative remedies with the
recipient before filing a complaint with OCR; and requiring proof of
Title IX training. Commenters also suggested changes that they asserted
would improve the clarity of Sec. 106.8(b)(2) and (c), such as
changing the word ``attempting'' to ``applying'' in reference to third
parties who are attempting to participate in the recipient's education
program or activity.
Other commenters felt the proposed notice of nondiscrimination was
too long.
Discussion: The Department has considered commenters' suggestions
to include additional information and make changes to Sec. 106.8(b)(2)
and (c). Except as described below, the Department declines these
suggestions because they would create unnecessary burdens, would not
improve clarity, or are unnecessary to further Title IX's purposes.
The Department appreciates the opportunity to clarify that Sec.
106.8(b)(2) is not limited to employee complaints and requires a
recipient to state that its
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grievance procedures apply to the resolution of complaints made by
students, employees, or by other individuals who are participating or
attempting to participate in the recipient's education program or
activity. See final Sec. Sec. 106.2 (definition of ``complainant''),
106.8(b)(2), 106.45(a)(2). Whether a postdoctoral trainee is an
employee is a fact-specific inquiry, but regardless of the outcome,
they would likely still be entitled to make a complaint under a
recipient's grievance procedures if they are participating or
attempting to participate in its education program or activity. The
Department appreciates the opportunity to clarify that Title IX does
not require a complainant to exhaust administrative remedies with a
recipient prior to filing a complaint with OCR. However, the Department
declines to require additional language in the notice of
nondiscrimination because Sec. 106.8(c)(1)(i)(B) makes clear that
inquiries about the application of the final regulations may be
referred to ``the recipient's Title IX Coordinator, the Office for
Civil Rights, or both'' and the Department has never required an
individual exhaust a recipient's administrative processes before filing
a complaint with OCR.
The Department also declines to require proof of training in a
recipient's notice of nondiscrimination. A recipient is subject to
training requirements under Sec. 106.8(d) of the final regulations,
which includes a requirement for periodic and ongoing training. If the
Department required the notice of nondiscrimination to include proof of
training, a recipient would have to update it frequently to maintain
its accuracy, which would be burdensome and unnecessary.
The Department declines the commenter's suggestion to revise the
term ``attempting'' in Sec. 106.8(b)(2) to ``applying'' because
``attempting to participate'' better encompasses the broad
circumstances in which a person might try to access a recipient's
education program or activity. As the Department explained in the 2020
amendments, persons who have applied for admission or have withdrawn
from a recipient's program or activity but indicate a desire to re-
enroll if the recipient appropriately responds to sex-based harassment
allegations may be properly understood as ``attempting to participate''
in the recipient's education program or activity. 85 FR 30198, n. 869.
The term ``applying'' would inappropriately narrow the provision's
application.
The notice of nondiscrimination in the final regulations
appropriately informs the recipient's community of relevant Title IX
policies and procedures and how to learn more or enforce their rights.
As discussed above, the Department declined commenters' suggestions to
include additional information that would be burdensome or unnecessary
and maintains that the requirements for the notice strike the right
balance between providing necessary information without being overly
lengthy and cumbersome. But the Department has considered commenters'
suggestions on ways to improve clarity in the notice of
nondiscrimination and has determined that reorganizing Sec. 106.8(c)
will provide the needed clarity. Specifically, the Department has
consolidated the requirements specifying that the notice of
nondiscrimination must include information on how to locate the
recipient's nondiscrimination policy under Sec. 106.8(b)(1) and the
recipient's grievance procedures under Sec. 106.8(b)(2) into the same
paragraph--i.e., final Sec. 106.8(c)(1)(i)(D). The Department further
reorganized Sec. 106.8(c) to improve clarity by grouping similar
topics together and deleted references to Sec. Sec. 106.45 and 106.46
from Sec. 106.8(c)(1)(i)(D) to avoid redundancy as coverage of these
sections is implied by the reference to grievance procedures under
106.8(b)(2).
Changes: The Department has revised Sec. 106.8(c)(1)(i)(D) and (E)
(which is similar to Sec. 106.8(c)(1)(iv) and (v) in the proposed
regulations) to now contain all notice of nondiscrimination
requirements regarding where to find the recipient's nondiscrimination
policy and grievance procedures. The Department has further revised
final Sec. 106.8(c)(1)(i)(D) to omit the phrase ``Sec. 106.45, and if
applicable Sec. 106.46.''
Free Speech and Religious Exemptions
Comments: Some commenters opposed the requirement that a recipient
adopt and publish a notice of nondiscrimination, asserting that it
would infringe on the free speech rights of a recipient that follows
religious tenets that conflict with the proposed regulations. Some
commenters argued that the Department should either require or permit a
recipient with a religious exemption to disclose it in the recipient's
notice of nondiscrimination. Some commenters argued that failure to
acknowledge a religious exemption could cause a notice to be inaccurate
or misleading.
Discussion: The Department notes that proposed Sec. 106.8(c)(i)-
(v) has been redesignated as Sec. 106.8(c)(i)(A)-(E) in these final
regulations, and the following comment summaries and discussion
generally refer to these provisions in their final forms.
Title IX's purpose is to eliminate sex discrimination in federally
funded education programs and activities. See Cannon v. Univ. of Chi.,
441 U.S. 677, 704 (1979) (``Title IX, like its model Title VI, sought
to accomplish two related, but nevertheless somewhat different,
objectives. First, Congress wanted to avoid the use of federal
resources to support discriminatory practices; second, it wanted to
provide individual citizens effective protection against those
practices.''). Likewise, Sec. 106.8, which contains the administrative
requirements related to Title IX's nondiscrimination mandate,
effectuates that purpose and does not require the suppression of speech
or expression.
The Department disagrees that the required contents of a
recipient's notice of nondiscrimination renders the notice inaccurate
for a recipient that qualifies for a religious exemption. A recipient's
nondiscrimination obligation may be limited by various exceptions and
limitations in the statute, such as limited application of the
prohibition on discrimination in admissions, 20 U.S.C. 1681(a)(1), the
religious exemption, 20 U.S.C. 1681(a)(3), and the exception for
membership practices of social fraternities and sororities, 20 U.S.C.
1681(a)(6). With respect to the religious exemption, Title IX expressly
states that it ``shall not apply'' to an educational institution
controlled by a religious organization to the extent compliance would
be inconsistent with the religious tenets of such organization. 20
U.S.C. 1681(a)(3); see also 34 CFR 106.12(a). Under Sec.
106.8(c)(1)(i)(A) of the final regulations, the notice of
nondiscrimination appropriately limits its application to the
obligations with which a recipient is ``required by Title IX and this
part'' to comply. This qualifying language recognizes that some
recipients are exempt from Title IX in whole or in part due to
statutory and regulatory exemptions, including the religious exemption.
The Department declines commenters' suggestion that the Department
amend the regulations to require a recipient to address its eligibility
for a religious exemption in its notice of nondiscrimination. Requiring
a recipient to include information about a religious exemption in its
notice of nondiscrimination would be impractical given the fact-
specific nature of the intersection between particular Title IX
requirements and particular religious tenets. Such a requirement would
be inconsistent with the Department's longstanding
[[Page 33547]]
interpretation that the statutory religious exemption applies
regardless of whether a recipient has sought advance assurance from OCR
or notified the public of its intent to rely on the exemption. See 34
CFR 106.12(b); 85 FR 30475-76. For additional information on Title IX's
religious exemption, see the discussion of Religious Exemptions
(Section VII.C).
The Department recognizes that a recipient's notice of
nondiscrimination may include qualifying language if the recipient
intends to assert a religious exemption to particular provisions of the
Title IX regulations. The Department has therefore added language to
make clear that a recipient may, but is not required to, include
information about any applicable exemptions or exceptions in its
notice.
Changes: The Department has added a provision in Sec.
106.8(c)(1)(ii) to clarify that a recipient is not prevented from
including information about any exceptions or exemptions applicable to
the recipient under Title IX in its notice of nondiscrimination.
Publication of Notice of Nondiscrimination (Sec. 106.8(c)(2))
Comments: Some commenters opposed as burdensome, duplicative, and
impractical the proposed requirement that a recipient include its
notice of nondiscrimination in each handbook, catalog, announcement,
bulletin, and application form. Commenters offered a variety of changes
to the publication requirement, including other methods to publish the
notice of nondiscrimination, which commenters suggested would improve
clarity.
Other commenters objected to permitting a recipient to post its
notice of nondiscrimination solely on a website, arguing that web-
posting would not be accessible to everyone and could prevent low-
income, transient, or English language learner populations from
accessing this information. Some commenters suggested the Department
require a recipient to publish its notice of nondiscrimination and
grievance procedures in English and Spanish; in a simple, clear, step-
by-step manner at an appropriate reading level; and in an accessible
format.
Some commenters suggested the Department require a recipient to
provide notice to all stakeholders but not delineate the manner for
doing so, so that a recipient can consider varying State law
requirements. Other commenters argued that it is impractical for a
recipient to include multiple notices required under other Federal and
State laws in every announcement or bulletin.
Discussion: A notice of nondiscrimination must be widely accessible
to achieve Title IX's objectives, and multiple modes of communication
may assist stakeholders in accessing this information. To that end, the
final regulations at Sec. 106.8(c)(2) restore the longstanding
requirement that existed from 1975 until 2020 that a recipient publish
the notice of nondiscrimination in its handbooks, catalogs,
announcements, bulletins, and application forms to increase awareness.
See 87 FR 41427-28. Restoring this until-recently-applicable
requirement will enable a recipient to comply with the final
regulations with minimal burden and, given this minimal burden, any
reliance interest is minimal.
Recognizing commenter concerns about burden, duplication, and
impracticability, the Department notes that the final regulations at
Sec. 106.8(c)(2) account for space and format limitations and provide
a recipient flexibility by giving it the option to provide a shorter
version of the notice of nondiscrimination, if necessary. See Sec.
106.8(c)(2)(ii). The short-form notice--which may be a one-sentence
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, plus a link
to the full notice of nondiscrimination on the recipient's website--
provides the minimum information necessary to ensure that the
recipient's community members are aware of a recipient's Title IX
obligations without unduly burdening the recipient. In addition, a
recipient may include its notice of nondiscrimination in its handbooks,
catalogs, announcements, bulletins, and application forms in the same
manner it makes those materials available (i.e., in print if it
distributes those materials in print, and electronically if it
maintains those materials only electronically).
The Department agrees with commenters who highlighted a recipient's
obligations to ensure meaningful access for students, parents, and
others with limited English proficiency or who may not have ready
access to information on a website. The Department further agrees that
individuals with disabilities and those with limited English
proficiency may face additional barriers to accessing information
related to Title IX. In connection with the concern that people who do
not have access to the internet may not be able to access this
information, the final regulations adequately ensure access because
Sec. 106.8(c)(2) requires a recipient to publish its notice in
handbooks, catalogs, announcements, bulletins, and application forms,
in addition to its website.
The Department emphasizes that a recipient is responsible for
complying with its obligations under all applicable Federal laws,
including those prohibiting discrimination on the basis of disability
or national origin. Because these other laws are distinct authorities,
however, the Department does not specify these separate obligations in
its Title IX regulations. Moreover, because a recipient's obligation to
provide information that is accessible to individuals with disabilities
and those with limited English proficiency is addressed under other
laws such as Title VI and Section 504, it is unnecessary and
duplicative to include the same or similar obligations under Title IX
as well, as some commenters suggested.
The Department acknowledges commenters' suggestion that a recipient
be required to use language in their Title IX policy, grievance
procedures, and notice of nondiscrimination that is clear and
accessible for students and others in the recipient's community. The
final regulations leave a recipient discretion in how it drafts its
policy, grievance procedures, and notice of nondiscrimination to ensure
it is accessible to the school community. Anyone who believes that a
recipient is not communicating effectively with individuals with
disabilities or limited English proficiency may file a complaint with
OCR. While the requirements of Sec. 106.8(c)(2) will provide
communities with appropriate notice of a recipient's Title IX
obligations, the final regulations do not bar a recipient from
additionally posting its notice of nondiscrimination in a public
location at each school or building the recipient operates, sharing it
at specific events, or re-distributing it annually. Likewise, nothing
in these final regulations prohibits a recipient from identifying other
ways, in addition to the recipient's website, that students, parents,
and others can access the full notice, if only the short-form notice is
used in print.
The final regulations' posting requirement is necessary so that
students, their parents or guardians, or other legal representatives as
appropriate, employees, and others who seek to participate in a
recipient's education program or activity have access to information
about Title IX whenever they might need it. Section 106.8(c)(2) may be
broader than other State or Federal notice requirements
[[Page 33548]]
that relate only to employees because a recipient needs to reach the
entire school community, including those who join midway through or for
only a limited part of the school year. Although recipients may be
subject to requirements under other Federal or State laws, the
Department has determined that the requirements in Sec. 106.8(c)(2)
are necessary to effectuate Title IX's nondiscrimination mandate. While
the Department agrees that Title IX does not itself require a recipient
to issue notices mandated under any other law, including State laws, it
is unnecessary to address obligations under other laws in the final
Title IX regulations.
The Department made minor revisions to Sec. 106.8(c)(2)(ii) for
improved clarity and precision.
Changes: The Department revised Sec. 106.8(c)(2)(ii) to change the
first reference to ``paragraph (c)(2)'' to ``paragraph (c)(2)(i),'' to
replace the phrase ``comply with paragraph (c)(2) of this section by
including'' with ``include,'' and to change the word ``providing'' to
``provide.''
3. Section 106.8(d) Training
Benefits, Time, and Expense of Training
Background: Section 106.8(d)(1) requires all employees to 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 under Title IX, including the definition
of ``sex-based harassment,'' and all applicable notification and
information requirements under Sec. Sec. 106.40(b)(2) and 106.44.
Additionally, Sec. 106.8(d)(2) requires all investigators,
decisionmakers, and other persons responsible for implementing the
recipient's grievance procedures or who have the authority to modify or
terminate supportive measures to also be trained on the recipient's
obligations under Sec. 106.44; the recipient's grievance procedures
under Sec. 106.45, and if applicable 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 Sec.
106.45, and if applicable Sec. 106.46. Under Sec. 106.8(d)(3),
facilitators of the informal resolution process must also be trained on
the rules and practices associated with the recipient's informal
resolution process and how to serve impartially, including by avoiding
conflicts of interest and bias. Finally, Title IX Coordinators and
their designees must also be trained on their specific responsibilities
under Sec. Sec. 106.8(a), 106.40(b)(3), 106.44(f), 106.44(g), the
recipient's recordkeeping system and the requirements of Sec.
106.8(f), as well as any other training necessary to coordinate the
recipient's compliance with Title IX.
Comments: Commenters generally supported the training requirements
in proposed Sec. 106.8(d), stating that the requirements would ensure
uniformity in how recipients recognize and respond to notice of sex
discrimination, require all employees to be well-informed about Title
IX, help all employees clearly identify incidents of sex
discrimination, and help create a safe and supportive learning
environment for students.
Some commenters opposed the training requirements, reasoning that
they would require significant time and funding, including to change
and expand trainings, identify and purchase comparable training
sources, track changes to training mandates, revise policy manuals, and
identify and train employees.
Some commenters noted that they had recently paid for training
updates stemming from the 2020 amendments and would need additional
funding for any new updates. Some commenters stated that the training
requirements in proposed Sec. 106.8(d), which differ depending on
employee role and reporting requirements, are vague and would be
confusing and burdensome to implement, particularly given that larger
recipients often onboard large numbers of employees within a short
period of time and have many employees in temporary roles, and
suggested that a recipient be given flexibility to determine which
personnel need to be trained. One commenter asked the Department to
clarify whether reasonable exceptions for training are allowed for
short-term substitute employees, limited term positions, or other
special circumstances.
Discussion: The Department acknowledges commenters' support for the
training requirements in Sec. 106.8(d), which will enable a recipient
and its employees to consistently identify and address sex
discrimination in accordance with their responsibilities under Title IX
and these final regulations. The Department's own enforcement
experience, which commenters reinforced, confirms that inadequate
training can lead to improper responses to sex discrimination. The
Department acknowledges that the training requirements in the final
regulations will require recipients' time and effort to update training
materials and conduct additional training. But the Department concludes
that the training requirements in Sec. 106.8(d) are necessary to align
a recipient's Title IX training responsibilities with the recipient's
overall obligations under these final regulations. 87 FR 41428-29.
While the Department understands that recipients will need to
dedicate some additional resources to train employees under Sec.
106.8(d), the benefits of comprehensive training outweigh the
additional minimal costs. These benefits include ensuring that all
employees receive training on aspects of Title IX that are relevant and
critical to their specific roles, that those most likely to interact
with students in their day-to-day work have the training necessary to
understand their role in ensuring a recipient's Title IX compliance,
and that all persons involved in implementing a recipient's grievance
procedures and the informal resolution process are clearly designated
and trained on conducting a fair process. Each of these benefits, in
turn, will help ensure that members of a recipient's community are not
discriminated against on the basis of sex and have equal access to the
recipient's education program or activity. The Department therefore
declines to adopt any exceptions to the training requirements. For
additional discussion of benefits and costs associated with the
training requirements in the final regulations, see the Regulatory
Impact Analysis.
In accordance with the Regulatory Flexibility Act, the Department
has reviewed the potential effects of the final regulations, including
the training requirements, on all recipients, including small entities.
As discussed in the final Regulatory Flexibility Analysis, the
Department does not expect that these final regulations will place a
substantial burden on small entities. Similarly, these final
regulations do not unreasonably burden entities that have a large
number of temporary employees, such as adjunct faculty, because such
institutions already have to train temporary employees on institutional
policies and applicable laws. As discussed above, training on Title
IX's requirements to address sex discrimination is of paramount
importance, is a condition of a recipient's receipt of Federal funds,
and is justified to help a recipient provide an educational environment
free from sex discrimination.
The Department acknowledges that some commenters would prefer more
flexibility in training obligations but has determined that the
benefits of
[[Page 33549]]
prescribed training requirements outweigh their concerns. The
Department notes that Sec. 106.8(d) provides a recipient flexibility
to structure and staff training in the way that works best for its
educational community and accounts for its available resources, as long
as a recipient meets the training requirements in Sec. 106.8(d). The
Department further notes that the regulations do not require a
recipient to hire outside trainers or purchase outside training
materials, but that a recipient may choose to do so. The Department
declines to require certain training practices or techniques, aside
from the requirements of Sec. 106.8(d), to allow a recipient
flexibility to determine how to meet training requirements in a manner
that best fits its unique educational community.
The Department acknowledges commenters' concerns about the time
needed to implement new training requirements. As explained in the
discussion of Effective Date and Retroactivity (Section VII.F), the
Department has carefully considered these concerns, and recognizes the
practical necessity of allowing recipients sufficient time to plan for
implementing these final regulations, including, to the extent
necessary, time to amend their policies, procedures, and trainings. In
response to commenters' concerns such as these and for reasons
described in the discussion of Effective Date and Retroactivity
(Section VII.F), the Department has determined that the final
regulations are effective August 1, 2024.
Changes: The effective date of these final regulations is August 1,
2024.
Frequency of Training
Comments: Several commenters asked the Department to clarify how
often training must be conducted and whether a recipient would be
required to retrain employees when their duties shift. The commenters
noted that, for many recipients, employee job duties frequently change.
Discussion: The Department acknowledges commenters' concerns about
whether a recipient is required to retrain employees when their duties
shift. The purpose of the Department's training requirements is to
ensure that all personnel directly involved in carrying out the
recipient's Title IX duties are trained in a manner that promotes
compliance with Title IX and these final regulations. The Department
has therefore concluded that a revision to the proposed regulatory text
is necessary to help ensure this compliance and give employees the
tools they need to perform their duties as required under Title IX and
the final regulations. The Department has revised Sec. 106.8(d) to
require employees who receive a change of position that alters their
duties under Title IX or the final regulations to receive training on
such new duties promptly upon such change of position.
The Department is also persuaded that more specificity is required
based on commenters' questions about the timing and frequency of
training under Sec. 106.8(d). For this reason, the Department has
revised this provision to specify that all persons identified as
requiring training under Sec. 106.8(d) must receive training related
to their responsibilities promptly upon hiring or change of position,
and annually thereafter. The requirement to conduct training promptly
upon hiring or change of position and on an annual basis thereafter
preserves flexibility for recipients to comply with this provision
while also ensuring that all persons who require training remain
informed of their obligations and responsibilities under Title IX. The
Department notes that this revision is consistent with the Department's
assumption, as previously stated in the July 2022 NPRM, that all
employees of a recipient receive required trainings each year. 87 FR
41552.
Changes: The Department has revised Sec. 106.8(d) to clarify that
persons who must receive training related to their duties under Sec.
106.8(d) receive such training promptly upon hiring or change of
position that alters their duties under Title IX or this part, and
annually thereafter. For consistency with the other provisions of these
regulations, the Department has also modified Sec. 106.8(d)(1)(ii) to
include ``Title IX and'' before ``this part[.]'' The Department has
also changed ``106.44(f) and 106.44(g)'' to ``106.44(f) and (g)[.]''
Impartiality in the Grievance Process
Comments: Commenters supported proposed Sec. 106.8(d)(2)-(4) for a
variety of reasons, including that the training requirements that apply
to investigators, decisionmakers, Title IX Coordinators and their
designees, and other persons responsible for implementing a recipient's
grievance procedures assist a recipient in establishing grievance
procedures that are fair and equitable and facilitates the aims of
Title IX.
Some commenters expressed concern that proposed Sec. 106.8(d)(2)-
(4) would not be sufficient to prevent bias in grievance procedures and
protect due process. Commenters asserted that trainings should be
factually accurate and should emphasize due process protections to
ensure the objectivity of those involved in a recipient's grievance
procedures. One commenter expressed concern that training is
insufficient to prevent bias in Title IX Coordinators because they
believed that individuals drawn to such roles have biases against
respondents who are men.
Discussion: The Department agrees that the training required under
Sec. 106.8(d)(2)-(4) supports Title IX grievance procedures that are
fair and equitable for all parties. The Department also acknowledges
commenters' concerns regarding avoiding bias in Title IX grievance
procedures and notes that the final regulations mandate that grievance
procedures be free from bias and include several requirements, in
addition to training to achieve this mandate. For example, Sec. Sec.
106.44(f)(1)(i) and 106.45(b)(1) require that a Title IX Coordinator
and a recipient's grievance procedures treat a complainant and
respondent equitably; Sec. Sec. 106.44(k)(4) and 106.45(b)(2) require
that any person designated as a Title IX Coordinator, investigator,
decisionmaker, or facilitator of an informal resolution process must
not have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent; and
Sec. 106.46(i)(1)(iii) requires that an appeal following a grievance
procedure or dismissal must be offered if there is an allegation that
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.
To be clear, training is an important component of a recipient's
obligation to ensure that grievance procedures are impartial. To that
end, Sec. 106.8(d) specifically states that training must not rely on
sex stereotypes, including for investigators, decisionmakers, and Title
IX Coordinators and their designees; Sec. 106.8(d)(2)(iii) requires
all investigators, decisionmakers, and other persons who are
responsible for implementing the recipient's grievance procedures be
trained on how to serve impartially, including by avoiding prejudgment
of the facts at issue, conflicts of interest, and bias; and Sec.
106.8(d)(3) requires all facilitators of an informal resolution process
under Sec. 106.44(k) to 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. In addition to these training requirements, the final regulations
adopt Sec. Sec. 106.44, 106.45, and
[[Page 33550]]
106.46 to ensure that a recipient's response to complaints of sex
discrimination is free from bias. The Department agrees that trainings
should be factually accurate and cover, as applicable to the training,
the protections in the grievance procedures to ensure a fair process.
When there is indication that a recipient has failed to comply with
any of the requirements in the final regulations, including those
related to recordkeeping, training, conflicts of interest or bias, and
treating complainants and respondents equitably, a complaint may be
filed with OCR. 34 CFR 100.7(b).
The Department has long recognized Title IX to require that
training materials and trainers, as well as recipient staff, operate
without bias. The Department has addressed such biases when identified
in OCR investigations of alleged sex discrimination under Title IX. As
discussed above, the Department continues to decline to recommend
certain training practices or techniques aside from the requirements of
Sec. 106.8(d), leaving flexibility to a recipient to determine how to
meet training requirements in a manner that best fits the recipient's
unique educational community. The Department notes that Sec. 106.8(f)
requires a recipient to make training materials available for public
inspection upon request, which provides appropriate public
accountability and transparency.
Changes: None.
Additional Training Topics
Comments: Several commenters suggested that Sec. 106.8(d) include
training on a variety of additional subjects for employees, Title IX
Coordinators, investigators, and those who facilitate informal
resolutions.
Some commenters requested that the Department require training on
trauma-informed responses to complaints of sex-based harassment, noting
that trauma-informed responses can encourage complainants to move
forward with the Title IX process, assist with healing, and prevent re-
traumatizing a complainant. Other commenters, however, suggested that
trauma-informed training can introduce biases in favor of the
complainant and opposed such training, particularly for decisionmakers.
Discussion: The Department appreciates commenters' views on whether
to expand required training topics in Sec. 106.8(d), such as training
on trauma-informed practices. The Department has determined that Sec.
106.8(d) strikes the appropriate balance between requiring training
topics that are necessary to promote a recipient's compliance with
these final regulations while leaving as much flexibility as possible
to a recipient to choose the content and substance of training topics
in addition to those mandated by this provision. The final regulations
include appropriate protections against conflicts of interest and bias;
mandate trainings on impartiality, conflicts of interest, and bias; and
preclude training from relying on sex stereotypes. A recipient has
flexibility to choose how to meet these requirements in a way that best
serves the needs and values of its community, including by selecting
best practices, including trauma-informed practices, that meet or
exceed the legal requirements imposed by these final regulations.
Changes: None.
Individuals To Be Trained
Comments: Some commenters suggested expanding the categories of
staff who must be trained under Sec. 106.8(d) to include, for example,
advisors, volunteers, contractors, and third-party agents who provide
aid to a recipient, such as athletic coaches or extracurricular
coordinators.
Some commenters also requested that the Department require
recipients to train students and parents on how to report incidents of
sex discrimination and how to support other students experiencing sex
discrimination.
Some commenters asked the Department to clarify whether proposed
Sec. 106.8(d) would require a recipient to train all employees, or if
it would be sufficient to make training available to all employees; how
a recipient should treat graduate students; and how a recipient should
ensure that all employees receive training, noting that collective
bargaining agreements may govern a recipient's ability to require and
enforce attendance at a training.
Discussion: Section 106.8(d)(1) requires all employees to be
trained on a recipient's obligation to address sex discrimination in
its education program or activity, the scope of conduct that
constitutes sex discrimination, and all applicable notification and
information requirements under Sec. Sec. 106.40(b)(2) and 106.44; and
further requires all personnel directly involved in carrying out the
recipient's Title IX duties to be trained in a manner that promotes a
recipient's compliance with these final regulations. The Department
notes that this would include any advisors, graduate students,
contractors, volunteers, or third-party agents who are performing roles
that are directly involved in carrying out the recipient's Title IX
duties. The Department declines to further mandate training for
advisors, graduate students, volunteers, contractors, and third-party
agents not directly involved in carrying out the recipient's Title IX
duties and who are not employees because the benefit of doing so would
not be justified by the cost that training this population would impose
on a recipient. But the Department notes that under the wide variety of
employment or associational arrangements and circumstances in place
across recipients, as well as variations in applicable State employment
laws, many of these individuals may constitute employees who must be
trained under Sec. 106.8(d). The Department also reiterates that
nothing within the final regulations prohibits a recipient from
choosing to train volunteers, contractors, third-party agents, or other
non-employees if such training will further the recipient's compliance
with these final regulations.
For clarity in the first sentence of Sec. 106.8(d), the Department
has changed the phrase ``the persons described below'' to ``the persons
described in paragraphs (f)(1) through (4) below.''
The Department acknowledges commenters' support for the value of
educating parents and students on sex discrimination. The training in
these final regulations is limited to training of recipient employees.
Nothing in these final regulations impedes a recipient's discretion to
provide educational information to students and parents. The Department
also notes that information about a recipient's Title IX policies and
procedures will be made publicly available in other ways consistent
with the requirements of Sec. 106.8(b).
The Department appreciates the opportunity to clarify that Sec.
106.8(d) requires a recipient to train all employees, as opposed to
just making training available. While the Department recognizes that
some commenters may find this burdensome, the requirement to train all
employees serves the important purpose of ensuring that all employees
understand their role in the recipient's compliance with its Title IX
obligations and understand their responsibilities when they obtain
information about conduct that may reasonably constitute sex
discrimination under Title IX. For a discussion of the estimated costs
of implementation, see the Regulatory Impact Analysis.
The Department notes that many recipients are already subject to
State laws that require training for all employees on issues such as
child abuse prevention, sexual harassment, and
[[Page 33551]]
mandatory reporting. As the Department previously stated in the July
2022 NPRM, the Department assumes that all employees of a recipient
receive required trainings each year and that the training required
under Sec. 106.8(d) is likely to be incorporated into those existing
training sessions. 87 FR 41552. For this reason, and other reasons
discussed in the Regulatory Impact Analysis, the Department anticipates
that the requirement to train all employees will not meaningfully
change the overall annual burden from the 2020 amendments related to
training requirements for recipient employees. The Department disagrees
that collective bargaining agreements preclude offering and enforcing
training to employees who belong to a union. The Department notes that
the 2020 amendments required a recipient to train employees regardless
of whether such employees were members of a union. See 34 CFR
106.45(b)(1)(iii).
Changes: In the first sentence of final Sec. 106.8(d), the
Department has inserted ``in paragraphs (d)(1) through (4)'' in between
``persons described'' and ``below.''
Training on Definition of ``Sex-Based Harassment''
Comments: Several commenters opposed the proposed requirement in
Sec. 106.8(d)(1)(ii) that all employees be trained on the definition
of ``sex-based harassment.'' Commenters asserted that the Department
lacks the statutory authority to mandate such training, particularly
for students, and objected to the Department's definition of ``sex-
based harassment.''
Discussion: Training on the definition of ``sex-based harassment''
under Sec. 106.8(d)(1)(ii) applies only to employee training and does
not require a recipient to provide training or instructional content on
the definition of ``sex-based harassment'' or sex discrimination to
students. Comments objecting to the definition of ``sex-based
harassment'' are addressed in the discussion of the definition of
``sex-based harassment'' in Sec. 106.2. The Department declines to
remove the requirement that all employees be trained on the definition
of ``sex-based harassment'' under Sec. 106.8(d)(1)(ii) because such
training is an essential component of a recipient's ability to identify
and address conduct that constitutes sex discrimination.
The Department disagrees that requiring training on the definition
of ``sex-based harassment'' exceeds the Department's statutory
authority under Title IX. The Department is authorized to promulgate
regulations to effectuate the purpose of Title IX, including by
requiring training on the definition of ``sex-based harassment.'' See
20 U.S.C. 1682. This training requirement furthers Title IX's
nondiscrimination mandate and ensures that a recipient appropriately
addresses sex discrimination occurring in its education program or
activity. See, e.g., Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 267
(4th Cir. 2021) (reasoning that ``Congress's goal of protecting
students from sex discrimination in education'' necessarily entails
that schools adequately train their staff to identify instances of
sexual harassment), cert. denied, 143 S. Ct. 442 (2022).
Changes: None.
Training on Notification Requirements for Pregnancy or Related
Conditions
Comments: Commenters generally supported the requirement in
proposed Sec. 106.8(d)(1)(iii) that a recipient train employees
regarding their obligations under Sec. 106.40(b)(2) to students who
are pregnant or experiencing pregnancy-related conditions. Some
commenters objected to Sec. 106.8(d)(1)(iii), asserting that it would
be unduly burdensome, very few employees will receive pregnancy
disclosures from students, and the training obligation should be
limited to employees in student-facing roles.
Discussion: The Department acknowledges commenters' support of
proposed Sec. 106.8(d)(1)(iii), which requires a recipient to train
employees on the requirement to promptly provide a student (or person
who has a legal right to act on behalf of the student) with the Title
IX Coordinator's contact information upon being informed of the
student's pregnancy or related conditions. By explicitly requiring a
recipient to train its employees regarding the recipient's obligations
under Sec. Sec. 106.40(b)(2) and 106.44, the final regulations will
help ensure that students are not discriminated against based on
pregnancy or related conditions, that complaints will be handled
promptly, and that students who are pregnant or experiencing pregnancy-
related conditions \28\ have equal access to the recipient's education
program or activity as required under Title IX.
---------------------------------------------------------------------------
\28\ The Department notes that this preamble uses the terms
``pregnancy or related conditions'' and ``pregnant or experiencing
pregnancy-related conditions'' interchangeably to mean any condition
covered under the definition of ``pregnancy or related conditions''
in final Sec. 106.2.
---------------------------------------------------------------------------
Even though Title IX regulations have prohibited discrimination
based on pregnancy or related conditions since 1975, feedback that the
Department received during its June 2021 Title IX Public Hearing, in
meetings held in 2022, and in the comments in response to the July 2022
NPRM, demonstrated that many employees and students were unaware of
these protections, and that discrimination based on pregnancy or
related conditions persists. See 87 FR 41513. For a recipient to
address sex discrimination based on pregnancy or related conditions,
the Department has determined that some training is warranted for all
employees to help ensure that students understand their option to
contact a Title IX Coordinator.
The Department acknowledges that not all employees have student-
facing roles, but an employee's role can evolve over time and whether a
student is comfortable disclosing pregnancy or related conditions, or
resulting discrimination or harassment, to any particular employee--
student facing or not--will vary. As such, students may disclose
pregnancy or related conditions to employees beyond teachers,
professors, Title IX Coordinators, and other employees who have
traditionally student-facing roles. By requiring all employees to be
trained on the limited, but important, notification requirements, any
employee will be able to provide a student (or a person who has a legal
right to act on behalf of a student) with the same information.
The Department emphasizes that the information that employees must
be trained on is modest and can be incorporated into already-required
training sessions. For most employees, the training will consist of how
to: (1) promptly notify a student who informs them of their pregnancy
or related conditions, or a person who has a legal right to act on
behalf of a student and who so informs them, that the Title IX
Coordinator can take specific actions to prevent sex discrimination and
ensure the student's equal access to the education program or activity,
and (2) share the Title IX Coordinator's contact information. See Sec.
106.40(b)(2).
Changes: None.
Live Trainings
Comments: Commenters requested that the Department clarify whether
trainings must be in a live or interactive format, and some requested
that the Department require a recipient to conduct live training.
Discussion: As discussed in the 2020 amendments, the final
regulations do not require training to be conducted in-person and do
not preclude trainings from being conducted online or virtually, either
synchronously or asynchronously. 85 FR 30560. The Department declines
to mandate a
[[Page 33552]]
particular method of providing training and reiterates its intent to
provide recipients with the flexibility to choose how to meet these
requirements in a way that best serves the needs of their community.
Regardless of the method of presentation, the training must satisfy the
requirements of Sec. 106.8(d).
Changes: None.
Supportive Measures
Comments: Several commenters requested modifications to proposed
Sec. 106.8(d)(2) to remove the specific requirement to train those
with the authority to modify or terminate supportive measures under
Sec. 106.44(g)(4) because the commenters perceived proposed Sec.
106.8(d)(2) to require a recipient to train every employee involved in
a supportive measure.
Discussion: The Department declines to remove the requirement in
Sec. 106.8(d)(2) that individuals with the authority to modify or
terminate supportive measures under Sec. 106.44(g)(4) receive training
on specified additional topics. Although a variety of recipient
employees may be involved in the implementation of supportive measures,
Sec. 106.44(g)(4) addresses a narrow category of employees: those who
have authority to modify or reverse a recipient's decision to provide,
deny, modify, or terminate supportive measures, such as a dean or
principal. Because these individuals play a role in implementing the
recipient's grievance procedures and have the responsibility and
authority to modify or reverse a recipient's decision concerning a
supportive measure, it is necessary to ensure that they are properly
trained on the additional topics set forth in Sec. 106.8(d)(2).
Changes: None.
4. Section 106.8(e) Students With Disabilities
General Comments
Comments: Commenters supported proposed Sec. 106.8(e) because it
would clarify a recipient's Title IX obligations for students with
disabilities; recognize that the requirements of Section 504 and the
IDEA must be considered throughout the Title IX grievance procedures;
and ensure that students with disabilities have access to all aspects
of a recipient's education program or activity, including but not
limited to Title IX grievance procedures. Many commenters noted that
students with disabilities are frequently overlooked and marginalized;
are at an increased risk of experiencing sex discrimination, including
sexual violence; and may be more vulnerable to accusations of sexual
misconduct because their behaviors may be misunderstood.
Some commenters expressed concern that proposed Sec. 106.8(e)
would place an undue burden on an elementary school or secondary school
recipient and staff members to arrange additional meetings of the IEP
team and the Section 504 team beyond those required for compliance with
the IDEA and Section 504. Commenters believed this would create
confusion as to the applicability of procedural requirements under
those laws. Some commenters requested that the Department modify
proposed Sec. 106.8(e) to give recipients more flexibility, such as by
not requiring consultation with entire IEP teams or Section 504 teams,
permitting a recipient to make case-by-case determinations as to
whether consultation is necessary, or allowing a staff member other
than the Title IX Coordinator to engage in consultations about students
with disabilities. Other commenters suggested that the Department
specify the circumstances under which the Title IX Coordinator must
hold meetings with the IEP team or Section 504 team.
Finally, some commenters asked the Department to provide technical
assistance or issue supplemental guidance regarding the interaction of
the Title IX regulations, Section 504, and the IDEA, and one commenter
asked the Department to clarify the interaction between proposed Sec.
106.8(e) and FERPA.
Discussion: The Department appreciates the range of opinions
expressed by commenters about topics related to the intersection of sex
and disability in these regulations. As the Department has recognized
previously and as noted by many commenters, students with disabilities
experience sex-based harassment in significant numbers, with some
populations of students with disabilities at an even higher risk than
others. See 87 FR 41430; 85 FR 30079. The rights of students with
disabilities warrant the attention and concern demonstrated by the
obligations set forth in Sec. 106.8(e), and the inclusion of this
provision in the final regulations will provide clarity for students
with disabilities about what to expect from their educational
institutions when they are involved in Title IX grievance procedures as
complainants or respondents.
The IDEA and Section 504 protect the rights of students with
disabilities in elementary school and secondary school. As explained in
the July 2022 NPRM, there are distinctions between each statute's
requirements that are essential in other contexts. See 87 FR 41430. For
purposes of Title IX, however, the implementing regulations for the
IDEA and Section 504 require that a group of persons, known as the IEP
team or Section 504 team, be responsible for making individualized
determinations about what constitutes a free appropriate public
education (FAPE) for each student with a disability, which includes
issues such as the placement, special education, and related services
appropriate for that student's needs. 34 CFR 300.17; 34 CFR 104.33.
When an elementary or secondary student with a disability is a
complainant or respondent, the Title IX grievance procedures may
intersect with the decisions made by an IEP team or Section 504 team
about placement or other matters involving the provision of FAPE.
Consultation with the Title IX Coordinator in all such situations will
help ensure that an elementary school and secondary school recipient
does not interfere with the rights of students with disabilities while
complying with these final regulations. The Department declines to
alter the final regulations to permit a recipient to make case-by-case
determinations as to whether this consultation is necessary, as the
Department has concluded that this consultation will always be
necessary when a student with a disability is a complainant or
respondent, to ensure compliance with both Title IX and the relevant
Federal disability laws.
Section 106.8(e) does not require IEP or Section 504 meetings, does
not mandate consultation with full IEP teams or Section 504 teams, does
not identify particular individuals within the IEP team or Section 504
team who must be part of the consultation, and does not specify the
decisionmaking process, leaving these decisions to the discretion of
the recipient. This approach recognizes the differences between
elementary school and secondary school recipients, as the logistics
surrounding consultation may vary depending on factors such as the
recipient's size or structure. Beyond stating that these consultations
must occur when an elementary school or secondary school student with a
disability is a complainant or respondent, the Department declines to
delineate specific circumstances under which the consultations must
occur, such as at specific stages of the grievance procedure process,
in order to support the flexible approach of Sec. 106.8(e). At the
same time, Sec. 106.8(e) will not preclude a recipient from taking
actions such as convening additional
[[Page 33553]]
IEP or Section 504 meetings or consultation with full IEP teams or
Section 504 teams if necessary under the particular circumstances
(e.g., to revise a student's IEP or services under Section 504 in order
to meet the student's special education and related services needs).
Moreover, Sec. 106.8(e) does not impact the rights and procedural
safeguards guaranteed to students with disabilities or their parents or
guardians under the IDEA or Section 504. Recipients must fully comply
with those laws and their implementing regulations in addition to Title
IX.
After careful consideration of the public comments received
regarding proposed Sec. 106.8(e), the Department clarifies in the
final regulations that the Title IX Coordinator is not required to
consult with a student's full IEP team or Section 504 team and
maintains that the final regulations strike the appropriate balance
between ensuring that consultation between the Title IX Coordinator and
a student's IEP team or Section 504 team occurs at the elementary
school and secondary school level, while not stipulating specific
parameters of that consultation. The Department also recognizes that
the recipient bears responsibility for ensuring this consultation takes
place. Therefore, the Department has altered the final regulations to
clarify that the recipient must require that the Title IX Coordinator
consult with one or more members of a student's IEP team or Section 504
team, as appropriate. Additionally, the Department notes that the Title
IX Coordinator's duties are delegable under Sec. 106.8(a)(2) and that,
accordingly, a staff member other than the Title IX Coordinator may
engage in the consultation if that responsibility has been assigned to
a designee.
In response to commenters' requests that the Department provide
more information about the purpose of the consultation, the Department
emphasizes that mere consultation with one or more members of an IEP
team or Section 504 team does not ensure compliance with the IDEA and
Section 504. The Department anticipates that, in many cases,
consultation will identify additional measures necessary to ensure
compliance with the IDEA and Section 504. Accordingly, the Department
has revised this provision to emphasize that the purpose of the
consultation is to determine how the recipient can comply with relevant
special education laws while carrying out the recipient's obligation
under Title IX and these final regulations. The Department also
appreciates the opportunity to clarify that consultations should be
carried out with an understanding of the sensitivity of the issues
involved and consistent with FERPA.
The Department recognizes that sex discrimination can overlap with
other forms of discrimination, such as discrimination based on race or
disability, and that a recipient's obligations under these final
regulations sometimes overlap with a recipient's obligations under
other civil rights laws. Sections 106.8(e), 106.44(g)(6), 106.44(h),
and 106.44(i), among other sections of these final regulations,
recognize the importance of coordinating a recipient's obligations
under Federal civil rights laws. Nothing in the final regulations
prevents a recipient from adopting additional mechanisms to coordinate
compliance with applicable civil rights laws, to maximize protection
from discrimination and minimize the potential for redundancy or
unnecessary burden on a recipient's students or employees.
The Department also removed the reference to Sec. 106.46 in the
first sentence of proposed Sec. 106.8(e) because this sentence only
applies to elementary school or secondary school students, so Sec.
106.46 will not apply.
The Department acknowledges that supporting recipients and Title IX
Coordinators in implementing these regulations is important. The
Department will offer technical assistance and guidance, as
appropriate, to promote compliance with these final regulations.
Changes: The Department has revised Sec. Sec. 106.8(e) and
106.44(g)(6)(i) to clarify that the recipient must require the Title IX
Coordinator to consult with one or more members, as appropriate, of a
student's IEP team or Section 504 team if a complainant or respondent
is an elementary or secondary student with a disability. The Department
removed references to ``Section 504 team'' from Sec. Sec. 106.8(e) and
106.44(g)(6)(i) because such term does not appear in the Section 504
regulations. The Department has revised these sections to provide that
the Title IX Coordinator should consult with a student's IEP team or
Section 504 team ``to determine how to comply'' with relevant special
education laws, and made a parallel change in the sentence regarding
postsecondary students. The Department removed the reference to Sec.
106.46 in the sentence applicable to elementary and secondary students.
Access to Accommodations and Auxiliary Aids
Comments: Several commenters suggested that the Department include
language in Sec. 106.8(e) regarding students with disabilities' rights
to access reasonable accommodations and auxiliary aids. One commenter
suggested that the Department minimize barriers to accessing reasonable
accommodations, ensure that recipients provide Title IX information and
materials in accessible formats, and ensure that recipients' Title IX
offices are accessible to students with disabilities.
Discussion: The IDEA, Section 504, and Titles II and III of the ADA
and their implementing regulations ensure protections for students with
disabilities, including specific provisions safeguarding their rights
related to special education and related services and protecting them
from discrimination, including the provision of effective
communication. These laws and their implementing regulations have their
own procedural requirements and provide for accommodations, referred to
in this preamble as reasonable modifications, and auxiliary aids and
services for students with disabilities. As explained in the July 2022
NPRM, recipients may be required to provide auxiliary aids and services
for effective communication and make reasonable modifications to
policies, practices, and procedures to ensure equal opportunities for
students with disabilities and avoid discrimination on the basis of
disability. 87 FR 41466. Title IX and its implementing regulations are
limited to addressing sex discrimination; therefore, the Department
declines to impose obligations or requirements with respect to rights
conferred by the IDEA, ADA, or Section 504 in these final regulations.
The Department will continue to enforce the IDEA, Section 504, Title
II, and their implementing regulations,\29\ and recipients must fully
comply with those laws and their implementing regulations, including by
providing access to auxiliary aids and services and making reasonable
modifications in accordance with their provisions.
---------------------------------------------------------------------------
\29\ The Departments of Justice and Education both have
enforcement authority under Title II of the ADA. The Department of
Justice is responsible for enforcement and implementation of Title
III of the ADA.
---------------------------------------------------------------------------
Changes: As discussed above, we have revised both sentences of
Sec. 106.8(e) to replace ``help comply'' with ``to determine how to
comply.''
Postsecondary Students With Disabilities
Comments: Several commenters offered feedback specifically related
to students with disabilities at postsecondary institutions. For
[[Page 33554]]
example, one commenter asked the Department to require postsecondary
institutions to provide advisors for students with disabilities
involved in Title IX grievance procedures because they may need
additional explanation and supports, and some commenters believed that
the Department should require, rather than permit, Title IX
Coordinators to consult with the individual or office designated to
provide support to students with disabilities.
Discussion: The Department appreciates commenters' input regarding
concerns particular to postsecondary students with disabilities. The
IDEA does not apply in the postsecondary education context. As
explained in the July 2022 NPRM, see 87 FR 41430, a postsecondary
student with a disability does not have to disclose that they have a
disability to their postsecondary institution. Generally, if a
postsecondary student with a disability would like an academic
adjustment or other modification, they must provide information
regarding their disability to the recipient institution, and the
institution must consider the request. See 34 CFR 104.44. Because a
student with a disability may not have established a voluntary
relationship with the postsecondary institution's office that serves
students with disabilities, Sec. 106.8(e) permits, but does not
require, consultation between the Title IX Coordinator and the
postsecondary institution's disability services office. Section
106.8(e) is intended to provide flexibility to postsecondary
institutions, while helping to ensure that the needs of students with
disabilities are met and while maintaining autonomy for students with
disabilities regarding their relationship with a postsecondary
institution's disability services office. For the same reasons, the
Department declines to require postsecondary students to provide
advisors for students with disabilities involved in Title IX grievance
procedures. The Department notes that nothing in Sec. 106.8(e)
prohibits a recipient from consulting additional school officials as
appropriate under the circumstances or from providing advisors to
students with disabilities, nor does it abrogate a recipient's
obligation to comply with other Federal laws that protect the rights of
students with disabilities at the postsecondary level. As such, the
Department does not believe modifications with regard to postsecondary
institutions are warranted.
Changes: None.
5. Section 106.8(f) Recordkeeping
Recordkeeping--Documentation Records (Sec. 106.8(f)(1) and (2))
Comments: Several commenters were generally supportive of the
proposed recordkeeping requirements because they would streamline the
recordkeeping process, promote better understanding of the Title IX
regulations among organizations, and reduce sex discrimination.
Some commenters asserted that the recordkeeping requirements were
too burdensome and complex for recipients and employees. Some expressed
support for the recordkeeping provision from the 2020 amendments at
Sec. 106.45(b)(10)(i), which one commenter said balanced the due
process rights of all parties with recipient discretion.
Commenters suggested additions to the proposed recordkeeping
requirements, including requirements to share evidentiary records to
assist OCR investigations and litigation and maintain demographic data
related to complainants and respondents to monitor patterns of bias and
ensure equitable enforcement. Some commenters urged the Department to
require a recipient to retain records regarding respondents found
responsible for sexual assault and require those respondents to
register as sex offenders.
Some commenters, in contrast, suggested that records related to
certain categories of allegations, such as discrimination based on
gender identity, not be maintained. Other commenters suggested that
recipients should delete or correct records when a complaint is
dismissed, goes through the informal resolution process without a
finding or admission of responsibility, or there is a judicial
determination that punishment was unlawfully imposed.
Commenters offered several suggestions related to the record
retention period, with some commenters requesting that recipients
maintain records for as long as the student is in attendance; for a
period that aligns with State laws; or permanently.
One commenter objected to proposed Sec. 106.8(f)(2) because it
would be limited to records of which the Title IX Coordinator has
notice rather than records of which any appropriate official or
responsible employee has notice. The commenter noted that a complainant
or other reporting party may not always know how to contact the Title
IX Coordinator and urged the Department to revise proposed Sec.
106.8(f)(2) to apply whenever a recipient has actual or constructive
notice. One commenter asked the Department to clarify which records and
in what circumstances information related to a complaint or informal
resolution could be disclosed and another commenter asked the
Department to clarify whether a recipient would need to document its
prompt and effective response.
Discussion: The Department acknowledges commenters' support for the
recordkeeping provision in Sec. 106.8(f)(1) and (2). It is important
for a recipient to maintain records regarding its response to
complaints or other notification of sex discrimination. The
recordkeeping provision is aligned with a recipient's overall
obligations under these final regulations. As explained in the July
2022 NPRM, some aspects of the recordkeeping provision in the 2020
amendments are no longer applicable under these final regulations. See
87 FR 41431. Except for the website posting requirement for training
materials, which is addressed in more detail below, the Department
disagrees that the recordkeeping requirements are too burdensome or
complex. It is appropriate to require a recipient to maintain records
regarding complaints of sex discrimination, the actions the recipient
took to meet its obligations in response to notification to the Title
IX Coordinator of conduct that reasonably may be sex discrimination,
and materials used to provide training under Sec. 106.8(d).
Recordkeeping can reveal effective compliance practices and patterns of
noncompliance, through which a recipient can assess its own Title IX
compliance. In addition, maintaining records for an appropriate period
of time ensures that, during an investigation or compliance review, the
Department can ascertain a recipient's compliance with the Title IX
regulations. See 34 CFR 100.6(c), 100.7(a), 100.7(c) (incorporated
through 34 CFR 106.81).
The Department notes that a recipient must conduct a fact-specific
analysis to determine whether allegations of sex discrimination,
including sex-based harassment, violate Title IX. In light of this, the
Department declines to exempt records related to any particular
category of allegations, such as discrimination based on gender
identity, from the recordkeeping requirements in the final regulations,
when such information was included in a complaint or shared with the
Title IX Coordinator. Excepting allegations from the recordkeeping
requirements could interfere with the Department's ability to evaluate
whether a recipient has complied with its obligations under the final
regulations. The Department notes that the recordkeeping provision in
the
[[Page 33555]]
final regulations requires a recipient only to maintain such records
and does not govern whether and under what circumstances a recipient
could disclose such records in court proceedings or whether such
records are part of a student's permanent record. The Department notes
that FERPA generally provides eligible students, and parents of
students who are under 18 years of age and attending an elementary
school or secondary school, with the right to access their or their
children's education records. The Department also notes that if, after
the Title IX Coordinator was notified of conduct that reasonably may
constitute sex discrimination, a recipient determined that the
allegations did not constitute sex discrimination, or dismissed the
complaint, that information would be included in the records a
recipient is required to maintain under Sec. 106.8(f). The Department
also notes that Sec. 106.44(j) of these final regulations prohibits
the disclosure of personally identifiable information obtained in the
course of complying with this part, except in limited circumstances.
For additional information on this topic, see the discussion of Sec.
106.44(j).
The Department maintains that it is appropriate that the final
regulations limit the scope of this recordkeeping provision to
maintaining records and making training materials available for public
inspection upon request. The Department declines in these final
regulations to require a recipient to share evidentiary records to
assist in a subsequent lawsuit or OCR investigation and declines to
fine a recipient that fails to maintain or share such records. The
Department lacks fining authority under Title IX or the authority to
require a recipient to share records outside the context of OCR's
administrative enforcement. It is not necessary to add language to the
recordkeeping provision requiring a recipient to share evidentiary
records to assist in an OCR investigation because this is already
required under 34 CFR 100.6(c) (incorporated through 34 CFR 106.81).
The Department also notes that Sec. 106.44(j) permits a recipient to
comply with a disclosure requirement under other Federal laws or
Federal regulations, or, to the extent it would not conflict with Title
IX or its implementing regulations, a disclosure required by State or
local law, or permitted under FERPA. For further explanation of the
circumstances under which a recipient is permitted to disclose
personally identifiable information obtained in the course of complying
with this part, see the discussion of Sec. 106.44(j).
The Department declines to add language requiring a recipient to
delete records when a complaint is dismissed, the informal resolution
process concludes without a finding or admission of responsibility, or
a judicial determination results in a change to the recipient's
determination whether sex discrimination occurred. As explained above,
maintaining certain types of records, including these, is necessary to
demonstrate a recipient's compliance with Title IX. In addition, it is
not necessary to add language requiring a recipient to correct such
records because the final regulations already require that, for each
complaint of sex discrimination, a recipient maintains 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. Thus, a recipient is already
required to maintain information regarding the dismissal of a complaint
or an informal resolution process that ends without a finding or
admission of responsibility under Sec. 106.8(f)(1). If a judicial
determination results in a change to the recipient's determination
whether sex discrimination occurred, that change to the determination
would also be included as part of the records a recipient is required
to maintain under Sec. 106.8(f)(1) because it documents the resulting
outcome of the recipient's grievance procedures under Sec. 106.45, and
if applicable Sec. 106.46.
With respect to the appropriate length of time that records must be
maintained, the Department maintains the position taken in the 2020
amendments that seven years is appropriate. See 85 FR 30411. The
Department notes that nothing in the final regulations prevents a
recipient from retaining records for a longer period if the recipient
chooses or because of other legal obligations. Similarly, nothing in
the final regulations prevents a recipient from keeping its employee
records for a longer period if it is concerned about repeat harassers.
The Department declines to tie record retention requirements to the
potential need for use in litigation or to base record retention
requirements on the length of a student's enrollment because recipients
can more easily administer a standard threshold than an enrollment
timeframe that varies with each student.
The Department declines to revise Sec. 106.8(f)(2) to apply
whenever a recipient has actual or constructive notice of a potential
Title IX violation. As explained in the discussion of Sec. 106.44(c),
the most effective way to ensure that a recipient operates its
education program or activity free from sex discrimination is to
explain a recipient's specific obligations when its Title IX
Coordinator receives information about conduct that reasonably may
constitute sex discrimination. The recordkeeping requirement in Sec.
106.8(f)(2) thus is appropriately tied to notification of information
about conduct that reasonably may constitute sex discrimination and no
regulatory text changes are necessary. The Department notes that under
Sec. 106.44(c), employees are either required to notify the Title IX
Coordinator when they have information about conduct that reasonably
may constitute sex discrimination, or to provide the contact
information of the Title IX Coordinator and information about how to
make a complaint of sex discrimination. Thus, even if a complainant or
other reporting individual does not know how to contact the Title IX
Coordinator, the information will either be shared with the Title IX
Coordinator by the employee who received the report, or the employee
who received the report would inform the complainant or other reporting
individual how to contact the Title IX Coordinator.
The Department also declines commenters' request to require the
collection of certain demographic data of complainants and respondents
because the Department did not specifically request comments on the
collection of demographic data of complainants and respondents, and it
would be appropriate to specifically solicit public comment before
requiring such data collection. The Department notes that nothing in
the final regulations precludes a recipient from collecting demographic
data relating to the recipient's Title IX complainants and respondents
for nondiscriminatory purposes provided that it does so consistent with
its nondisclosure obligations under Sec. 106.44(j) and other Federal,
State, and local laws regarding dissemination of data. See also 85 FR
30412.
Under the final regulations, a recipient is required to maintain
records documenting the grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, for each complaint of sex discrimination. This
includes records of complaints in which the respondent is found
responsible for sexual assault. The Department does not have the legal
authority to require a respondent found responsible for sexual assault
to register as a sex offender.
[[Page 33556]]
In response to the commenter's question regarding the circumstances
under which information related to a complaint or informal resolution
could be disclosed, the Department notes that final Sec. 106.44(j)
prohibits a recipient from disclosing personally identifiable
information obtained in the course of complying with the Title IX
regulations except in limited circumstances. Nothing in the
recordkeeping provision in the final regulations requires that records
be disclosed, but the Department notes that in addition to the
recordkeeping obligations in Sec. 106.8(f), a recipient must also
comply with its obligations in Sec. 106.45, and if applicable Sec.
106.46, regarding the provision of evidence and the determination of
responsibility to the parties. The Department also notes that Sec.
106.45(f)(4)(iii) requires a recipient to take reasonable steps to
prevent and address the parties' unauthorized disclosure of information
and evidence obtained solely through the grievance procedures.
The Department appreciates the commenter's inquiry regarding
whether a recipient must document its prompt and effective response.
The final regulations at Sec. 106.8(f)(2) require that for each
notification the Title IX Coordinator receives about conduct that may
reasonably constitute sex discrimination, including notifications under
Sec. 106.44(c)(1) or (2), a recipient must maintain records
documenting the actions it took to meet its obligations in Sec.
106.44, including its prompt and effective response. See Sec.
106.44(a).
Through its own review of this provision, the Department has
revised Sec. 106.8(f)(2) to align with changes made to Sec. 106.44(c)
and clarify which records must be maintained.
Changes: In Sec. 106.8(f)(2), the Department has removed the
reference to an ``incident of conduct that may constitute sex
discrimination under Title IX of which the Title IX Coordinator was
notified'' and replaced it with a reference to ``notification the Title
IX Coordinator receives of information about conduct that reasonably
may constitute sex discrimination under Title IX or this part,
including notifications under Sec. 106.44(c)(1) or (2),'' to align
with changes made to Sec. 106.44(c).
Recordkeeping--Training Materials (Sec. 106.8(f)(3))
Comments: Some commenters noted the importance of making training
materials available to the public to ensure that complaints are handled
fairly and free from bias and to ensure due process in the resolution
of complaints. Several commenters urged the Department to remove the
website posting requirement for training materials in proposed Sec.
106.8(f)(3), asserting that it is unnecessary, unjustified, burdensome,
and may diminish the quality of training provided by recipients.
Commenters argued, for example, that the proposed website posting
requirement may discourage a recipient from using training provided by
third parties due to intellectual property concerns, including video
testimonials about individuals' personal experiences, or from tailoring
trainings as needed or on a program-by-program basis.
Some commenters proposed alternatives to the website posting
requirement. For example, commenters said the Department should allow a
recipient to make training materials available upon request for
inspection by members of the public or through litigation discovery.
One commenter recommended that the Department require a recipient to
post a statement on its website that copies of training materials are
available upon request through a public records request or email to the
Title IX Coordinator.
Some commenters asserted that the website posting requirement is
ambiguous and asked the Department to specify how and in what format a
recipient should make training publicly available, including whether a
recipient must post slides with training content or only a certificate
of completion that shows the topic(s) covered and person(s) trained.
Some commenters were concerned that providing training materials
without additional context could lead to a misunderstanding about the
information learned at a training.
Discussion: The Department acknowledges the concerns that the
website posting requirement is burdensome, could diminish the quality
of training that recipients are able to offer, may violate laws
regarding the sharing of third-party proprietary information, and could
include video testimonials about individuals' personal experiences used
in training materials. The Department is therefore persuaded the
proposed requirement should be changed. Although the Department agrees
with commenters that ensuring transparency is important, posting
training materials on a website is not the only way to promote
transparency and ensure that training materials comply with the
requirements of Title IX, including that training not rely on sex
stereotypes.
In consideration of the issues raised by commenters, the Department
has revised Sec. 106.8(f)(3) to remove the requirement that a
recipient must post all training materials on its website. The final
regulations instead require a recipient to make all materials used to
provide training under Sec. 106.8(d) available upon request for
inspection by members of the public regardless of whether a recipient
maintains a website. Under the 2020 amendments, the requirement for
public inspection only applied to a recipient that did not maintain a
website. 34 CFR 106.45(b)(10)(D). Requiring a recipient to make all
training materials available upon request for inspection by members of
the public is practicable and reasonable, especially in light of
existing obligations that many recipients already have under public
records laws.
In response to commenters' concerns regarding the sharing of
proprietary information or video testimonials about individuals'
personal experiences used in training materials, the Department
acknowledges that the public inspection requirement applies to all
training materials, including those that contain proprietary
information or include video testimonials about individuals' personal
experiences. Consistent with the Federal government's interests in
protecting intellectual property that a commenter highlighted, nothing
in these final regulations abrogates intellectual property rights. If a
recipient seeks to use training from a third-party provider that
contains proprietary information, and the third-party provider is
unwilling to permit the recipient to make the training materials
available for public inspection upon request, the recipient will not be
able to use such materials to meet its training obligations under Sec.
106.8(d)(2). See also 85 FR 30412. Moreover, if a third-party provider
is willing to permit proprietary materials to be available for public
inspection upon request, nothing in the final regulations precludes a
recipient from formalizing how a public inspection request must be
made--and thus exercising discretion in how it facilitates the
inspection of such materials and the method in which the public
inspection must occur (e.g., at the recipient, with a representative of
the recipient present during the inspection). The Department also
maintains that sharing these materials through a public inspection
request, as opposed to posting them on a website, would allow the
recipient to have more control over the manner in which the materials
are shared, thereby giving recipients more flexibility to address
third-party providers' concerns and protect the privacy interests of
[[Page 33557]]
individuals who appear in video testimonials used in training
materials.
The Department has determined that removing the website posting
requirement, but maintaining the public inspection requirement,
provides for public accountability and transparency, and will help
alleviate some of the concerns raised by commenters regarding
widespread sharing of proprietary information with the public. In
addition, nothing in the final regulations precludes a recipient from
choosing to post its training materials on a website to fulfill its
obligations to make the training materials available for public
inspection upon request.
The Department acknowledges some commenters' views that the
requirement to make training materials publicly available has not been
clearly defined and has led to inconsistent practices across
recipients. Although the Department is removing the requirement to post
all training materials on a recipient's website, the Department
appreciates the opportunity to clarify that the final regulations
require a recipient to make all materials used to provide training
under Sec. 106.8(d) available to the public upon request. This
includes any slides with training content that were used to provide
training. It is not sufficient for a recipient only to provide a
certificate of completion with the topics covered and the person(s) who
attended the training. In addition, if an employee attends an ongoing
professional development program to satisfy the recipient's training
obligations under Sec. 106.8(d), records from that professional
development program would constitute training materials required to be
made available for public inspection. The Department notes that nothing
in the final regulations precludes a recipient from choosing to provide
additional context when making its training materials available for
public inspection, to alleviate the concern raised by some commenters
that providing training materials without additional context could lead
to a misunderstanding about the information learned at a training.
Changes: The Department has removed the requirement in Sec.
106.8(f)(3) for a recipient to make training materials publicly
available on its website if it maintains a website and replaced it with
a requirement for all recipients to make training materials available
upon request for inspection by members of the public, regardless of
whether the recipient maintains a website.
Recordkeeping (Pregnancy) (Proposed Sec. 106.8(f)(4))
Comments: The Department received many comments expressing concerns
about proposed Sec. 106.8(f)(4). The Department received numerous
comments asking for the elimination of proposed Sec. 106.8(f)(4) due
to concerns that this proposed provision would violate privacy rights.
Commenters were particularly concerned that there would not be
sufficient confidentiality protections regarding who could access these
sensitive records regarding pregnancy or related conditions and for
what purposes.
Many commenters believed that proposed Sec. 106.8(f)(4) would
present legal risks for students and employees. Commenters expressed
concern that retaining records related to pregnancy or related
conditions would have a chilling effect on pregnant students or
employees seeking support under proposed Sec. Sec. 106.40 and 106.57,
respectively, and could result in interruptions to equal educational
access, such as missed classes.
One commenter emphasized that, if proposed Sec. 106.8(f)(4) is
retained, the Department should impose stringent confidentiality
requirements regarding the records that would be created under this
proposed provision and should ensure consistency with FERPA and HIPAA.
Comments indicated that clarity was needed if proposed Sec.
106.8(f)(4) is retained, as one commenter believed that the proposed
provision would require a recipient to notify a student's parents of a
student's pregnancy, while another commenter believed it would not.
Several commenters asked for clarity regarding the application of FERPA
to records that would be maintained under proposed Sec. 106.8(f)(4).
Discussion: After further consideration of the comments, the
Department has determined that the recordkeeping requirement in
proposed Sec. 106.8(f)(4) is not necessary for OCR to assess whether a
recipient has met its obligations to provide reasonable modifications
to students and lactation time and space to students and employees.
This is because, in many cases, compliance can be determined without
documentation. Further, when a student or employee makes a complaint of
sex discrimination alleging that a recipient has failed to meet its
obligations under Sec. Sec. 106.40 and 106.57, or a Title IX
Coordinator receives information about conduct that reasonably may
constitute sex discrimination in the context of Sec. Sec. 106.40 and
106.57, proposed Sec. 106.8(f)(4) would not be necessary because the
recordkeeping requirements of Sec. 106.8(f)(1)-(2) apply. The
Department agrees with commenters that the risks, such as a chilling
effect on seeking support under Title IX, outweigh the benefits. The
Department is persuaded by commenters' concerns and has removed
proposed Sec. 106.8(f)(4) from the final regulations. The Department
acknowledges commenters' suggestions for further clarification of a
recipient's obligations to protect information that it obtains in the
course of complying with its obligations under Title IX and addresses
that issue in Sec. 106.44(j).
Changes: The Department has removed proposed Sec. 106.8(f)(4) from
the final regulations.
B. Action by a Recipient To Operate Its Education Program or Activity
Free From Sex Discrimination
Statutory Authority
Comments: Some commenters asserted that the provisions in proposed
Sec. 106.44, specifically, proposed Sec. 106.44(a)-(g) and (j),
exceed the Department's authority and are inconsistent with both Title
IX and established case law under Title IX, the U.S. Constitution, and
State law.
Discussion: The Department disagrees that any provisions within
Sec. 106.44 exceed the agency's authority or are inconsistent with
Title IX, case law interpreting Title IX, or the U.S. Constitution, and
the Department is unaware of any conflict between Sec. 106.44 and
State law. In adopting Sec. 106.44, the Department is acting within
the scope of its congressionally delegated authority under 20 U.S.C.
1682 to ``issu[e] rules, regulations, or orders of general
applicability'' to effectuate Title IX. 20 U.S.C. 1682. The Supreme
Court has recognized the Department's ``authority [under 20 U.S.C.
1682] to promulgate and enforce requirements that effectuate the
statute's nondiscrimination mandate,'' including requiring that a
recipient take specific steps to respond to sex discrimination in its
education program or activity. Gebser, 524 U.S. at 292. Moreover,
``Federal departments or agencies with the authority to provide
financial assistance are entrusted to promulgate rules, regulations,
and orders to enforce the objectives of Sec. 1681, see Sec. 1682, and
these departments or agencies may rely on `any . . . means authorized
by law' . . . to give effect to the statute's restrictions,'' Davis,
526 U.S. at 638-39.
The final regulations govern how a recipient responds to sex
discrimination
[[Page 33558]]
in the recipient's education program or activity and were promulgated
to effectuate the purposes of Title IX and fully implement Title IX's
nondiscrimination mandate. See Cannon, 441 U.S. at 704 (``Title IX,
like its model Title VI, sought to accomplish two related, but
nevertheless somewhat different, objectives. First, Congress wanted to
avoid the use of federal resources to support discriminatory practices;
second, it wanted to provide individual citizens effective protection
against those practices.''). As discussed further below, each of the
provisions of Sec. 106.44 is necessary to effectuate the purposes of
Title IX and ensure that a recipient responds to sex discrimination in
its education program or activity.
Further, the Department interprets Title IX and the final
regulations consistent with the U.S. Constitution. As the Department
noted in the July 2022 NPRM, existing Sec. 106.6(d), to which the
Department did not propose any changes, states that nothing in the
Title IX regulations ``requires a recipient to . . . [r]estrict any
rights . . . guaranteed against government action by the U.S.
Constitution.'' 87 FR 41415. In addition, nothing in these final
regulations would prevent a recipient from honoring contractual
obligations to the extent they do not conflict with Title IX or the
Department's regulations.
The Department acknowledges that State laws may impose different
requirements for training and notification requirements than these
final regulations. In most circumstances, a recipient can comply with
both State law and the final regulations. For example, when a State has
acted on its own authority to adopt specific notification requirements
for discrimination on the basis of sex, nothing in the final
regulations prevents a recipient from developing notification
requirements that comply with Sec. 106.44(c) and align with its
State's requirements. These final regulations do not interfere with a
recipient's obligation to comply with State law, to the extent such
State law does not conflict with Title IX and these final regulations.
For a more detailed explanation of preemption in the final regulations,
see the discussion of Sec. 106.6(b).
The Department appreciates the opportunity to respond to
commenters' assertions that specific provisions in Sec. 106.44 exceed
the scope of the Department's authority. Each of the specific
provisions is discussed more thoroughly below, but we address here
comments related to the Department's statutory authority. With respect
to the Department's authority to require monitoring for barriers to
reporting sex discrimination under Sec. 106.44(b), the Department
notes that it has long emphasized the importance of recipient efforts
to address and prevent sex discrimination, see 87 FR 41435 (citing 85
FR 30063, 30070, 30126), and Sec. 106.44(b) is necessary to effectuate
Title IX, see 20 U.S.C. 1682; this is because barriers to reporting in
a recipient's education program or activity prevent complainants from
coming forward and impede a recipient's ability to address sex
discrimination in its education program or activity when it occurs. As
a result, the recipient must monitor for such barriers and take steps
reasonably calculated to address them, as required in Sec. 106.44(b).
Similarly, Sec. 106.44(c) does not exceed the Department's statutory
authority because it provides the mechanism through which information
about conduct that reasonably may constitute sex discrimination
received by a recipient's employee is communicated to the Title IX
Coordinator so that appropriate steps can be taken. The Department
acknowledges that it is valuable to provide certain avenues for
students and employees to disclose information confidentially that will
not lead to action by the Title IX Coordinator. Many recipients have
confidential employees who provide important services to members of the
recipient's community. Section 106.44(d) recognizes the importance of
communicating which employees have such confidential status and how to
make a complaint to the Title IX Coordinator. The Department also
recognizes that students and others may disclose information at public
awareness events, which are an important part of a recipient's efforts
to prevent and address sex discrimination. Section 106.44(e) addresses
disclosures that occur in such public awareness events. Sections
106.44(d) and (e) govern how a recipient responds to information about
sex-based harassment in its education program or activity and are
promulgated to fully implement Title IX's nondiscrimination mandate.
Likewise, the Department disagrees that Sec. 106.44(f) and (g)
exceed the Department's statutory authority and notes that both
provisions are consistent with the requirement in current Sec.
106.44(a) that a recipient's Title IX Coordinator take specific action
in response to information about sexual harassment. The final
regulations, including the Title IX Coordinator requirements in Sec.
106.44(f) and the obligation to offer supportive measures in Sec.
106.44(g), govern how a recipient responds to sex discrimination in the
recipient's education program or activity and thereby help effectuate
20 U.S.C. 1681's mandate that no person shall be subject to sex
discrimination in a recipient's education program or activity.
Additionally, to the extent that some commenters asserted that
Sec. 106.44(j) exceeds the Department's statutory authority or is
inconsistent with Title IX, the Department maintains its position,
consistent with the 2020 amendments and as explained below in the
discussion of this provision, that clear nondisclosure protections are
necessary to effectuate Title IX because fear of disclosure chills
reporting and participation in the grievance procedures. See Doe v.
Mass. Inst. of Tech., 46 F.4th 61, 76 (1st Cir. 2022) (explaining that
``destroying . . . confidentiality may throw a wrench into . . . Title
IX proceedings''). Thus, Sec. 106.44(j) is within the scope of its
congressionally delegated authority under 20 U.S.C. 1682 to ``issu[e]
rules, regulations, or orders of general applicability'' to effectuate
Title IX.
Changes: None.
Freedom of Speech Considerations
Comments: Some commenters objected to the proposed revisions to
Sec. 106.44 on free speech grounds, asserting that the requirements to
report anything that may constitute sex discrimination would infringe
on academic expression on a range of divisive subjects because students
and faculty would self-censor to avoid the threat of an investigation.
Some commenters said the proposed regulations would impose a duty on a
recipient to monitor and censor potentially offensive speech even when
no complaint about the speech is made and to fire or expel individuals
with potentially offensive views to ensure that their speech does not
contribute to a hostile environment. Some commenters noted that the
Department proposed removing the following statement from current Sec.
106.44(a) without explanation: ``The Department may not deem a
recipient to have satisfied the recipient's duty to not be deliberately
indifferent under this part based on the recipient's restriction of
rights protected under the U.S. Constitution, including the First
Amendment, Fifth Amendment, and Fourteenth Amendment.'' These
commenters were concerned that the removal of this language would mean
that postsecondary institutions could use Title IX ``as an excuse'' to
limit student and faculty speech.
[[Page 33559]]
Discussion: The Department disagrees that Sec. 106.44 stifles and
silences academic expression and disagrees with commenters that
recipients will misunderstand or misapply their obligations to address
sex discrimination. As discussed above, the Department modified Sec.
106.44(a) in the final regulations to clarify a recipient's duties to
address sex discrimination under Title IX. Concerns related to
monitoring and censoring speech in Sec. 106.44 are discussed below in
connection with Sec. 106.44(b) and (f). The Department removed the
sentence commenters referred to because it relates to the deliberate
indifference standard, which is not used in these final regulations and
was not included in the proposed regulations. The Department explained
its reasons for removing the deliberate indifference standard in the
July 2022 NPRM. See, e.g., 87 FR 41432-35. The Department clarifies and
emphasizes that the removal of the deliberate indifference language in
the regulations does not in any way limit current Sec. 106.6(d), which
the Department maintained from the 2020 amendments and which states
that nothing in the Title IX regulations requires a recipient to
restrict any rights that would otherwise be protected from government
action by the First Amendment; deprive a person of any rights that
would otherwise be protected from government action under the Due
Process Clauses of the Fifth and Fourteenth Amendments; or restrict any
other rights guaranteed against government action by the United States
Constitution. In light of Sec. 106.6(d), the Department determined it
was unnecessary to maintain a reference to rights protected under the
U.S. Constitution in Sec. 106.44 of the final regulations. Similarly,
we also underscore that nothing in these final regulations changes or
is intended to change the commitment of the Department, through these
regulations and OCR's administrative enforcement, to act in a manner
that is fully consistent with the First Amendment and other
Constitutional guarantees. For additional discussion regarding the
First Amendment, see the discussion of Hostile Environment Sex-Based
Harassment--First Amendment Considerations (Sec. 106.2) (Section I.C).
Changes: None.
Termination of Federal Funds
Comments: Some commenters acknowledged that, in the July 2022 NPRM,
the Department explained that a recipient would always have an
opportunity to take voluntary corrective action prior to the Department
seeking to terminate Federal funds, but asserted that such actions
typically are costly for a recipient. One commenter stated that a
recipient will not know when it has complied with the proposed
standard, and further argued that the uncertainty of not knowing
whether they may lose Federal funding will cause a recipient to err on
the side of finding respondents responsible for sex discrimination.
Discussion: The Department disagrees that a recipient will not know
when it has complied with any aspect of these regulations. We emphasize
here, as we did in the July 2022 NPRM, see 87 FR 41433, 41435, that
nothing in the final regulations affects existing safeguards for a
recipient in administrative enforcement proceedings. Under Title IX,
the Department cannot terminate, refuse to grant, or refuse to continue
Federal financial assistance 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, notified the recipient and
attempted to voluntarily resolve the noncompliance, and provided an
opportunity for hearing and judicial review. 20 U.S.C. 1682-1683.
Consistent with this statutory scheme, when OCR 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), 100.8(c) (incorporated through Sec. 106.81); see also
Gebser, 524 U.S. at 287-89; 2001 Revised Sexual Harassment Guidance, at
iii-iv. During OCR's investigation or compliance review and during the
administrative enforcement process laid out above, OCR provides notice
of the alleged sex discrimination to the recipient, as well as an
opportunity for the recipient to voluntarily resolve any noncompliance
at multiple stages throughout the process. See, e.g., OCR's Case
Processing Manual, at 16-22. Regarding commenters' concerns that
corrective actions can be costly, the Department notes that OCR's
resolution of compliance concerns, including any required corrective
actions, are fact specific and any resolution agreement is negotiated
with the recipient and designed to account for the type of recipient
and OCR's investigative findings. These safeguards also protect against
commenters' fears about the effects of administrative enforcement as
well as their concerns that the Department seeks to hold a recipient to
a standard of strict liability for conduct about which it has no
knowledge. For additional discussion of strict liability concerns, see
the discussion of Sec. 106.44(a) below. In response to concerns that a
recipient will err on the side of finding respondents responsible for
sex discrimination, the Department notes that the discussions of
Sec. Sec. 106.45 and 106.46 explain the various procedural protections
for respondents included in the final regulations.
Changes: None.
1. Section 106.44(a) General
Recipients' Duty To Address Sex Discrimination
Comments: A number of commenters supported proposed Sec.
106.44(a), which they asserted is consistent with Title IX's purpose
and would ensure that recipients afford an educational environment free
from all forms of sex discrimination, including sex-based harassment.
In discussing a recipient's obligation to address sex discrimination,
some commenters described sexual misconduct in education as a public
health crisis that can have a long-term, detrimental effect on impacted
students, and other commenters supported the proposed regulations,
stating they would better protect LGBTQI+ individuals. Some commenters
supported the proposed regulations because they believed they would
hold recipients accountable and require recipients to be more
responsive to notices of discrimination, as some commenters stated that
recipients do not always take reports of sexual harassment and sexual
assault seriously to avoid reputational costs or harms to the
respondent.
Some commenters supported the proposed removal of the ``actual
knowledge'' and ``deliberate indifference'' standards from the 2020
amendments, which they asserted enable recipients to ignore sexual
harassment if it is reported to the wrong employee, or to respond
inadequately. Some commenters stated that the deliberate indifference
standard undermines the Department's enforcement role, has exacerbated
a misunderstanding of Title IX obligations, and is not appropriate for
a civil rights statute or required by case law.
Other commenters opposed the proposed removal of the ``actual
knowledge'' and ``deliberate indifference'' standards. Some commenters
argued that the 2020
[[Page 33560]]
amendments appropriately aligned the standard for administrative
enforcement with the standard the Supreme Court adopted for civil
litigation in certain harassment cases, citing Supreme Court cases
including Cannon, 441 U.S. 677; Franklin, 503 U.S. 60; and Gebser, 524
U.S. 274. Some commenters opined that the actual knowledge standard
allowed a recipient to respond efficiently and effectively to reports
and complaints of discrimination and argued that the removal of the
actual knowledge standard exceeds the Department's authority, with some
commenters characterizing the proposed standard as ``strict
liability,'' and others characterizing it as ``imputed knowledge.''
Citing Gebser and Davis, some commenters stated that the Supreme Court
has held that a recipient is not liable under a Spending Clause statute
without actual knowledge.
Some commenters opposed the proposed regulations as unclear,
stating that they do not indicate when a recipient must respond to
possible sex discrimination and take reasonable steps to ensure its
Title IX Coordinator learns of possible discrimination, and some
commenters asked the Department to clarify the meaning of ``prompt and
effective'' and ``remedy the effects'' in proposed Sec. 106.44(a).
Some commenters said that under proposed Sec. 106.44(a), there is
no guarantee of compliance because the requirements are open-ended, and
a recipient cannot monitor and control all participants in its
education program or activity.
Discussion: 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 therefore must ensure that it operates
its education program or activity free from sex discrimination. Section
106.44(a) sets forth a recipient's obligations to respond to sex
discrimination in order to fulfill Title IX's mandate.
As a Federal funding agency, the Department must ensure that
recipients comply with assurances that they will not use the
Department's funds to further sex discrimination. By setting forth
clear requirements, Sec. 106.44(a) allows the Department to fulfill
its enforcement role, which is prescribed by statute. 20 U.S.C. 1682.
To that end, the Department is statutorily obligated to enact
regulations that effectuate Title IX, and Federal agencies have
authority to define the contours of the Spending Clause contract with
recipients through those regulations. Bennett, 470 U.S. at 670.
Recipients are on notice of applicable regulations when they accept
Federal funding from the Department, and the Department holds them
accountable for compliance by providing them notice of noncompliance
and an opportunity to voluntarily resolve the noncompliance before
administrative enforcement action is taken. See Gebser, 524 U.S. at
289-90 (recognizing these features of administrative enforcement). For
additional explanation of the Department's administrative enforcement
process, see the prior section, Termination of Federal funds.
Regarding commenters' Spending Clause concerns, the statutory text
of Title IX requires a recipient to operate its education program or
activity free from sex discrimination, including sex-based harassment.
Gebser, 524 U.S. at 281; Davis, 526 U.S. at 649-50. As recognized by
the Supreme Court in Davis, ``the regulatory scheme surrounding Title
IX has long provided funding recipients with notice that they may be
liable for their failure to respond'' to sex discrimination. 526 U.S.
at 643-44. These final regulations provide clear notice of recipients'
obligations to respond to all forms of sex discrimination prohibited by
Title IX.
In addition to the statutorily authorized administrative
enforcement scheme, the Supreme Court has recognized an implied private
cause of action under Title IX. Gebser and Davis defined the standard
for private parties to hold recipients accountable for money damages
when they fail to address sexual harassment in their education program
or activity. That theory of liability is premised on the understanding
that in certain circumstances, ``sexual harassment constitutes a school
itself discriminating on the basis of sex in violation of Title IX.''
85 FR 30035. The Davis Court noted that the Court in Gebser ``concluded
that a recipient of federal education funds may be liable in damages
under Title IX where it is deliberately indifferent to known acts of
sexual harassment by a teacher,'' 526 U. S. at 641 and Davis extended
that conclusion to when the harasser is a student. Id. at 643.
The Department acknowledges some commenters' support for the 2020
amendments, which extended and adapted the Gebser/Davis framework from
private litigation for monetary damages to the context of
administrative enforcement of Title IX. However, the standard for
administrative enforcement is not derived from the same implied remedy
discussed in Gebser and Davis, and the Department is not required to
adopt the Gebser/Davis standard for administrative enforcement
purposes. See, e.g., 85 FR 30038, 30043 (stating that ``the Department
is not required to adopt the deliberate indifference standard
articulated in the Gebser/Davis framework''). Indeed, recipients must
comply with the Department's administrative enforcement regulations and
are subject to the Supreme Court's Gebser/Davis standard for private
damages liability. Even in 2020, when the Department chose to align its
administrative enforcement standard more closely with the Gebser/Davis
standard, it did not fully adopt the deliberate indifference standard,
85 FR 30035; instead, it adapted that standard to an administrative
enforcement context, illustrating clearly how the standards for
administrative enforcement and private enforcement are in fact
distinct.
Under the 2020 amendments, a recipient is required to respond to
sexual harassment when the recipient has ``actual knowledge.'' 34 CFR
106.30(a), 106.44(a). The 2020 amendments defined actual knowledge to
mean 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 school or secondary
school recipient. 34 CFR 106.30(a). The 2020 amendments also stated
that imputation of knowledge based solely on ``vicarious liability'' or
``constructive notice'' would be insufficient to constitute actual
knowledge, and that the standard would not be met when the only
official of the recipient with actual knowledge is the respondent. 85
FR 30574. Further, the 2020 amendments announced that a recipient with
actual knowledge must respond promptly in a manner that is not
``deliberately indifferent,'' and that a recipient is deliberately
indifferent only if its response is clearly unreasonable in light of
the known circumstances. Id. Throughout this discussion, we refer to
the ``actual knowledge standard'' and the ``deliberate indifference
standard'' as referenced in the 2020 amendments.\30\
---------------------------------------------------------------------------
\30\ Section 106.44(a) of the 2020 amendments included other
provisions, which are addressed elsewhere in this preamble, such as
the meaning of ``education program or activity''; the recipient's
responsibility for offering supportive measures; and the recipient's
duty to follow the grievance process before imposition of any
sanctions.
---------------------------------------------------------------------------
In the July 2022 NPRM, the Department proposed removing the actual
knowledge standard and the
[[Page 33561]]
deliberate indifference standard. See 87 FR 41432. The Department
further proposed that Sec. 106.44(a) state 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. Proposed Sec. 106.44(a) also stated that, to
ensure that a recipient can satisfy this obligation, a recipient must
comply with all of the requirements of proposed Sec. 106.44.
After the 2020 amendments went into effect stakeholders and
commenters representing recipients of all educational levels, Title IX
Coordinators, State Attorneys General, and advocacy organizations
informed the Department of serious problems associated with the actual
knowledge and deliberate indifference standards in the 2020 amendments.
They did so through the June 2021 Title IX Public Hearing, listening
sessions, and public comments in response to the July 2022 NPRM. For
example, the commenters said that the 2020 amendments did not require a
postsecondary institution to investigate sexual harassment in its
education program or activity even if the recipient's leadership had
persuasive evidence that harassment was taking place. Instead, they
noted that the 2020 amendments only required an investigation if the
person who experienced the harassment reported the harassment to a
specifically designated employee. As a result, under the 2020
amendments, a complainant who did not report the harassment to the
correct individual could be denied access to an educational environment
free from sex discrimination. Likewise, after the 2020 amendments, a
variety of stakeholders and commenters convincingly maintained that the
deliberate indifference standard is inappropriate in the administrative
enforcement context because it requires a limited response that does
not fully address sex discrimination in the recipient's education
program or activity.
The Department shares the serious concern of stakeholders and
commenters that the definition of actual knowledge in the 2020
amendments could permit a recipient to ignore sexual harassment simply
because allegations of harassing conduct were not reported to ``the
right'' employee. With the 2020 amendments, although the Department
adopted the view that reports of sexual harassment to any employee of
an elementary school or secondary school recipient would constitute
``actual knowledge'' of the recipient, the universe of postsecondary
institution employees to whom a report of sexual harassment would
constitute ``actual knowledge'' of the recipient was much more
limited--only the Title IX Coordinator or any official of the recipient
who had authority to institute corrective measures on behalf of the
recipient. The Department is now convinced that limiting a
postsecondary institution's obligations in this way is not effective
for purposes of ensuring Title IX compliance in the administrative
enforcement context because all recipients of Federal financial
assistance have a duty to operate their education programs or
activities free from sex discrimination regardless of the age of the
students they serve.
The Department also agrees with stakeholders and commenters that
the 2020 amendments did not require recipients to fully address the
impact of sexual harassment in their educational environments, and
further fell short of imposing sufficient obligations to respond to
possible sex discrimination. Indeed the 2020 amendments created a
troubling gap in implementing Title IX's prohibition on sex
discrimination: a recipient's employee could have information about
possible sex discrimination in a recipient's education program or
activity, yet the recipient could have no obligation to take any action
to address it unless a formal complaint was filed or the recipient's
Title IX Coordinator otherwise became aware of it, leaving conduct that
violated Title IX to go unredressed by recipients. The Department has
concluded that Title IX does not permit a recipient to act merely
without deliberate indifference and otherwise allow sex discrimination
to occur. Rather, in the administrative enforcement context, in which
the Department is responsible for ensuring that its own Federal funds
are not used to further discrimination, the Department expects
recipients to fully effectuate Title IX.
The Department also agrees with the stakeholders and commenters who
pointed out that the Department's application of a different standard
of liability for sexual harassment compared to other forms of
discrimination raised serious questions regarding equity and
rationality. The approach in the 2020 amendments singled out only
sexual harassment as subject to the deliberate indifference standard,
thereby raising questions as to why the Department was requiring
complainants to meet a particular standard for complaints about sexual
harassment, but not for other types of prohibited sex-based harassment.
Moreover, a number of stakeholders and commenters reported that the
deliberate indifference standard imposed by the 2020 amendments erodes
efforts to promote and sustain institutional trust by appearing to hold
schools to a lower standard for sexual harassment compared to other
forms of discrimination. Commenters who supported the 2020 amendments
and opposed the proposed regulations did not present convincing answers
to those challenging questions, and the Department is not able to
justify retaining the 2020 amendments against the range of challenges
and complications associated with applying the deliberate indifference
standard only to sex-based harassment. The Department determined that
the overarching standards for adequately addressing sex discrimination
should be more uniform--as well as robust in effectuating Title IX--and
accordingly Sec. 106.44(a) in these final regulations broadly covers
all forms of sex discrimination.
As proposed in the July 2022 NPRM, these final regulations remove
the deliberate indifference standard and instead clearly define steps a
recipient must take to address sex discrimination, as set forth in
Sec. 106.44. See 87 FR 41434-35. In addition, the Department has
expanded the knowledge standard from the 2020 amendments so that
regardless of the type of recipient, a recipient is deemed to have
knowledge of sex-based discrimination in its education program or
activity and an obligation to respond consistent with the requirements
in Sec. 106.44 when any non-confidential employee has information
about conduct that reasonably may constitute sex discrimination. The
nature of the response required by Sec. 106.44 depends on the person's
role, but a recipient must ensure that all of its employees fulfill the
duty to respond. All non-confidential employees of an elementary school
or secondary school recipient must notify the Title IX Coordinator when
the employee has information about conduct that reasonably may
constitute sex discrimination. Employees of other recipients who have
responsibility for administrative leadership, teaching, or advising in
the recipient's education program or activity must do the same. All
other non-confidential employees at a recipient that is not an
elementary school or secondary school must either notify the Title IX
Coordinator or provide the contact information of the Title IX
Coordinator and information about how to make a complaint of sex
[[Page 33562]]
discrimination to any person who provides the employee with information
about conduct that reasonably may constitute sex discrimination. See
Sec. 106.44(c).
A number of commenters expressed concern that proposed Sec.
106.44(a) appeared to hold recipients to a standard of strict liability
under which it could be held liable for any sex discrimination that
occurred, even if the recipient had no knowledge of the conduct. The
Department did not, and does not intend to impose such a standard, and
that is not the effect of these final regulations. The Department has
revised the final regulations to clarify that a recipient ``with
knowledge'' of conduct that reasonably may constitute sex
discrimination must respond promptly and effectively; that does not,
however, mean that the recipient is responsible for conduct that
occurred before an employee of the recipient becomes aware of the
conduct. As discussed above, Sec. 106.44(c) requires all employees of
a recipient to take some action when they have information--and
therefore knowledge--about conduct that reasonably may constitute sex
discrimination. However, if no Title IX Coordinator, including a
contractor who has been delegated Title IX responsibilities, or other
employee of a recipient has knowledge of conduct that reasonably may
constitute sex discrimination, then the recipient cannot respond
promptly and effectively. For additional explanation of the revisions
to the scope of conduct covered under Sec. 106.44(c), see the
discussion below on Scope of Conduct Subject to Sec. 106.44(c).
After three years of enforcement of the 2020 amendments and
feedback from stakeholders, the Department considers final Sec.
106.44(a) to be a natural and necessary outgrowth of the 2020
amendments. At that time, although the Department and commenters
recognized that some sexual harassment would go unaddressed, the
Department made the determination that, in the postsecondary
institution context, it would not require a recipient to respond each
time an employee has notice of sexual harassment on the ground that
doing so respected the autonomy of postsecondary institution students
and employees. 85 FR 30106. The Department's enforcement experience and
feedback from stakeholders and commenters has persuaded the Department
that Title IX requires more from recipients, as set forth in Sec.
106.44(a) and the other paragraphs of Sec. 106.44. The Department
maintains that the requirement in Sec. 106.44(a)(1) to respond
promptly and effectively and the specific actions outlined in Sec.
106.44(b)-(k) will more effectively ensure that a recipient fully
effectuates Title IX's nondiscrimination mandate. As explained in
greater detail in the discussion of Sec. 106.44(f), the Department
maintains that Sec. 106.44 appropriately accounts for complainant
autonomy and a recipient's obligation to operate its education program
or activity free from sex discrimination. Section 106.44 also responds
to concerns that under the standards set forth in the 2020 amendments,
some sexual harassment went unaddressed.
In response to commenters' concerns that the obligation in proposed
Sec. 106.44(a) was open-ended and a recipient lacks the ability to
monitor and control all participants in its education program or
activity, the Department has clarified in Sec. 106.44(a)(1) that a
recipient's obligation to respond promptly and effectively is triggered
when it has knowledge of conduct that reasonably may constitute sex
discrimination. Because the Department is charged with enforcing and
effectuating Title IX, we view the standard of liability in Sec.
106.44(a)(1) as a preferable approach to confirm for recipients that
they must respond promptly and effectively when they have knowledge of
conduct that reasonably may constitute sex discrimination and remain
obligated to ensure they comply with the standards set out in Gebser
and Davis. Section 106.44(a)(2), which states that a recipient must
comply with Sec. 106.44, clarifies a recipient must take the actions
outlined in Sec. 106.44(b)-(k) to comply with Title IX's statutory
obligation to operate its education program or activity free from sex
discrimination. This responds to commenter concerns that proposed Sec.
106.44(a) imposed obligations on recipients that were too open-ended by
giving recipients specific instructions for steps they must take both
to ensure they have knowledge of conduct that reasonably may constitute
sex discrimination and that they respond appropriately when they have
the requisite knowledge.
In addition, to more closely align with the revised language in
Sec. 106.44(a) describing recipients' duties and address commenters'
concerns regarding the standard of liability that proposed Sec.
106.44(a) appeared to hold recipients to, the Department has revised
the language in the title of Sec. 106.44 to clarify that this section
covers a recipient's response to sex discrimination as opposed to a
recipient's responsibility to operate its education program or activity
free from sex discrimination.
In response to commenters' request that the Department clarify the
meaning of ``prompt and effective'' and ``remedy the effects,'' the
Department notes that these terms are addressed in the discussion of
Sec. 106.44(f) below.
Changes: The Department has revised the title of Sec. 106.44 to
state that the section covers ``a recipient's response to sex
discrimination.'' The Department has also modified Sec. 106.44(a) to
state that (1) a recipient with knowledge of conduct that reasonably
may constitute sex discrimination in its education program or activity
must respond promptly and effectively; and (2) a recipient must also
comply with this section to address sex discrimination in its education
program or activity.
Notice of Sex Discrimination
Comments: Some commenters asked the Department to clarify when a
recipient would have a legal duty to address possible sex
discrimination and when the Department would consider a recipient to
have notice of possible sex discrimination. One commenter asked the
Department to clarify that a recipient would be responsible for
addressing possible sex discrimination when it knew or should have
known of the discrimination. Another commenter suggested that the
Department modify the second sentence of proposed Sec. 106.44(a) to
clarify that a recipient cannot be held liable for failing to address
conduct of which the recipient could not be aware.
One commenter asked the Department to address the circumstance in
which the only employee of an elementary school or secondary school
recipient with information about sex discrimination is the alleged
perpetrator.
Discussion: Under Sec. 106.44(a)(1), a recipient with knowledge of
conduct that reasonably may constitute sex discrimination in its
education program or activity must respond promptly and effectively. As
discussed above, in response to comments expressing concern that Sec.
106.44(a) established a standard of strict liability that would hold a
recipient responsible for conduct of which it had no knowledge, the
Department has amended Sec. 106.44(a)(1) to clarify that a recipient
must respond promptly and effectively only when it has knowledge of
conduct that reasonably may constitute sex discrimination. And, as
discussed above, a recipient has such knowledge when any non-
confidential employee has information about conduct that reasonably may
constitute sex
[[Page 33563]]
discrimination. In that circumstance, the final regulations make clear
that non-confidential employees must respond promptly and effectively
by either notifying the Title IX Coordinator or providing the Title IX
Coordinator's contact information and information about how to make a
complaint of sex discrimination to any person who provides the employee
with information about conduct that reasonably may constitute sex
discrimination under Title IX or this part, consistent with their
obligations under Sec. 106.44(c).
Consistent with the 2020 amendments, the recipient need not have
incontrovertible proof that conduct violates Title IX for it to have an
obligation to respond; if the conduct reasonably may be sex
discrimination, the recipient must respond in accordance with Sec.
106.44. See 85 FR 30192 (``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 for the recipient to be required to respond
promptly''); see, e.g., Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th at 263-
64 (citing Davis, 526 U.S. at 646-52) (holding that ``a school's
receipt of a report that can objectively be taken to allege sexual
harassment is sufficient to establish actual notice or knowledge under
Title IX--regardless of whether school officials subjectively
understood the report to allege sexual harassment or whether they
believed the alleged harassment actually occurred''). Further, when an
employee of the recipient, including the Title IX Coordinator and any
contractor who has been delegated Title IX responsibility has
information about conduct that reasonably may constitute sex
discrimination, they must respond consistent with their obligations
under the regulations. The Department declines commenters' request to
impose a ``knew or should have known'' standard on recipients in these
final regulations because such a standard is not necessary in light of
the requirement that employees respond promptly and effectively to
information about conduct that may reasonably constitute sex
discrimination, including by reporting such information to the Title IX
Coordinator.
Under Sec. 106.44(a)(2), a recipient must comply with the other
paragraphs of Sec. 106.44 to address sex discrimination in its
education program or activity. Some of the recipient's duties under
Sec. 106.44 arise when the Title IX Coordinator has knowledge of
conduct that reasonably may constitute sex discrimination, but the
recipient also has duties before such an occurrence. For example, a
recipient must take steps to require all of its non-confidential
employees to comply with the notification requirements in Sec.
106.44(c) and its confidential employees to comply with Sec. 106.44(d)
through training or otherwise. In addition, a recipient must require
its Title IX Coordinator to monitor for and address barriers to
reporting under Sec. 106.44(b), which must occur regardless of whether
the Title IX Coordinator has received information about conduct that
reasonably may constitute sex discrimination.
In response to a commenter's request for clarification, at the
elementary school, secondary school, and postsecondary levels, a
recipient is not relieved of its Title IX obligations simply because
the respondent is the only employee of the recipient with knowledge of
possible sex discrimination. However, the Department acknowledges that
the recipient may be practically unable to respond until after a
complaint is made or the conduct otherwise becomes known to a second
non-confidential employee. Upon notification of conduct that reasonably
may constitute sex discrimination, a recipient must require its Title
IX Coordinator to take action to end any sex discrimination that has
occurred in its education program or activity, prevent its recurrence,
and remedy its effects under Sec. 106.44(f)(1).
Changes: The Department has modified Sec. 106.44(a) to state that
(1) a recipient with knowledge of conduct that reasonably may
constitute sex discrimination in its education program or activity must
respond promptly and effectively; and (2) a recipient must also comply
with this section to address sex discrimination in its education
program or activity.
Liability Standard Under Title VII
Comments: Some commenters opposed having a different standard of
liability for Title IX and Title VII. These commenters stated that,
under Title VII, an employer is liable for negligence and Title VII
requires only reasonably calculated efforts to end harassment, prevent
its recurrence, and remedy its effects. Another commenter argued that,
unlike Title IX, Title VII was not enacted pursuant to Congress'
Spending Clause authority, and that Title VII imposes broad
restrictions on employers, including constructive notice of
discrimination, that are inappropriate in Title IX enforcement and thus
the standards need not align.
Discussion: The Department acknowledges commenters' views on the
liability standard under Title VII. Although the Department has taken
steps to align these regulations more closely with the standards of
Title VII, the Department is not bound by Title VII standards in
implementing Title IX. For further discussion of Title VII and Title
IX, see the discussions of the Framework for Grievance Procedures for
Complaints of Sex Discrimination (Section II.C) and Sec. 106.2
(Definition of ``Sex-Based Harassment''). As explained in those
sections, differences between the workplace and educational
environments make certain differences in administrative standards of
enforcement for Title VII and Title IX appropriate, even accounting for
the Department's efforts to promote consistency. The requirements in
Sec. 106.44(b)-(k) are designed to impose no more, and no less, than
reasonable demands to advance the successful implementation of Title
IX. And, as discussed above, the Department has clearly set forth the
steps a recipient must take to comply with Sec. 106.44(a), which
provides sufficient notice under the Spending Clause.
Changes: None.
Section 504 and the IDEA
Comments: One commenter asserted that removal of the actual
knowledge standard would incentivize a recipient to take drastic
measures in response to possible sex discrimination, such as removal of
a student, that would conflict with its obligations under Section 504
and the IDEA.
Discussion: The Department disagrees with the commenter that the
regulations will somehow incentivize a recipient to take measures in
response to possible sex discrimination, such as removal of a student,
that would conflict with the recipient's obligations under Section 504
or the IDEA. As discussed above, by adding ``with knowledge'' to Sec.
106.44(a)(1), the Department has addressed commenters' concerns
regarding strict liability. Although the Department has removed the
definition of ``actual knowledge'' from these final regulations, in
response to commenters' concerns, the Department has clarified that
this revision expands rather than removes a recipient's obligation to
respond to conduct of which their employees have knowledge.
Nonetheless, nothing in these regulations authorizes a recipient to
take any measures that conflict with Section 504 or the IDEA.
As explained in greater detail in the discussion of Sec. 106.8(e),
Section 504 and the IDEA protect the rights of students with
disabilities, and nothing in Sec. 106.44(a) or any other provision of
the final regulations modifies any rights
[[Page 33564]]
under those laws or any other Federal civil rights laws. In addition,
the Department notes that Sec. 106.44(h), which addresses emergency
removal, requires a recipient to undertake an individualized safety and
risk analysis to determine whether an imminent and serious threat to
the health or safety of a complainant or any students, employees, or
other persons arising from the allegations of sex discrimination
justifies removal. The respondent must also be provided notice and an
opportunity to challenge the decision immediately following the
removal, and this provision must not be construed to modify any rights
under the IDEA, Section 504, or the ADA.
Changes: None.
Neutrality or Impartiality of Title IX Coordinator
Comments: Some commenters asserted that proposed Sec. 106.44(a)
would eliminate neutrality or impartiality from the role of Title IX
Coordinators by requiring them to seek out discrimination and
harassment. Commenters argued that Title IX Coordinators would seek to
initiate a certain number of cases per year.
Discussion: The Department strongly disagrees that Sec. 106.44(a)
eliminates neutrality or impartiality from the role of the Title IX
Coordinator or will cause Title IX Coordinators to initiate a certain
number of complaints per year. Commenters offered no persuasive
evidence or reason to draw that conclusion, which lacks foundation in
the final regulations themselves. As stated in the July 2022 NPRM,
``the recipient is not in the role of prosecutor seeking to prove a
violation of its policy.'' 87 FR 41467. As discussed elsewhere in this
preamble, the recipient's role is to ensure that its education program
or activity is free of unlawful sex discrimination. Although doing so
requires a recipient to adjudicate complaints, both the provisions
regarding grievance procedures and other provisions of the final
regulations help ensure that all parties are treated fairly and without
bias. See, e.g., Sec. Sec. 106.8(d)(2)(iii), (d)(3) (training
requirements), 106.44(k)(4) (informal resolution), 106.45(b)(2)
(grievance procedures), 106.46(i)(iii) (appeals). Finally, nothing in
the regulations requires the initiation of a certain number of
complaints.
Changes: None.
Dual Enrollment Programs
Comments: Some commenters maintained that the proposed regulations
did not clarify institutional responsibilities in cases of sex
discrimination involving students in dual enrollment programs, i.e.,
enrolled in high school but taking college classes.
Discussion: The Department appreciates the opportunity to clarify
that, in circumstances in which a student is enrolled in two recipient
institutions at the same time, each recipient has its own obligations
to protect participants from sex discrimination under Title IX. Neither
should assume that the other institution is solely responsible for
responding to a complaint of sex discrimination from a student
participating in both programs, particularly because effective
supportive and remedial measures, to the extent appropriate, may
implicate both institutions.
Changes: None.
2. Section 106.44(b) Monitoring for Barriers
General Comments
Comments: A number of commenters supported proposed Sec. 106.44(b)
because it would encourage recipients to eliminate barriers to
reporting sex discrimination, including among historically marginalized
communities, and to monitor for specific barriers faced by individuals
with disabilities or limited English proficiency.
Some commenters identified a number of barriers to reporting sex
discrimination, including the 2020 amendments' requirements;
unfamiliarity with a recipient's Title IX Coordinator and grievance
procedures; recipients' history of inadequate responses to sex
discrimination; staff discouraging and deterring student reports;
unreasonably lengthy response times to reports of sex discrimination;
and fears of not being believed or of being judged, blamed, or
retaliated against for reporting sex discrimination.
Some commenters opposed proposed Sec. 106.44(b), asserting that it
was so vague as to expose recipients to litigation risk.
Other commenters asked for examples of steps ``reasonably
calculated'' to address barriers. Some commenters suggested
modifications to proposed Sec. 106.44(b) to require school staff to
follow up with students after they report sex discrimination to see if
they are experiencing repercussions because of their reports.
Some commenters suggested that the Department expand proposed Sec.
106.44(b) to require recipients to remedy any hostile environments to
prevent ongoing sex discrimination in the recipient's education program
or activity; require a Title IX Coordinator to ``proactively'' monitor
a recipient's education program or activity; require postsecondary
institutions to prevent sex discrimination; require recipients to
increase awareness of menstruation-related discrimination and
harassment; and include education at the elementary school and
secondary school level on healthy relationships.
Discussion: The Department acknowledges commenters' support for
Sec. 106.44(b) and agrees that barriers to reporting sex
discrimination in a recipient's education program or activity impede
recipients from realizing Title IX's promise of an educational
environment free from such discrimination. This includes barriers for
students with disabilities, individuals with limited English
proficiency, and other populations. Section 106.44(b) is therefore a
key part of recipients' Title IX compliance obligations.
The Department acknowledges commenters' concerns that in some cases
a recipient's Title IX reporting and complaint processes and grievance
procedures can create barriers to reporting sex discrimination.
Shortcomings such as inaccessible complaint reporting processes,
confusing grievance procedures that lack transparency, and difficult-
to-reach Title IX Coordinators or staff who discourage individuals from
making reports all serve as barriers to reporting sex discrimination
under Sec. 106.44(b). The Department also agrees with commenters that
poorly managed report and complaint processes, or grievance procedures
in which individuals have little confidence due to delays or
perceptions of bias, pose serious barriers to reporting sex
discrimination that recipients will be required to address to comply
with Sec. 106.44(b).
Although recipients may choose to use campus surveys to monitor
barriers to reporting, and the Department recognizes that climate
surveys are already required by some States and VAWA 2022 as a tool to
monitor for barriers to reporting sex discrimination, the Department
declines to mandate that recipients take particular steps to monitor
for such barriers, including employing surveys. Nothing in these
regulations would prevent a recipient from using campus surveys to
increase awareness about Title IX's protections. The Department
declines to require that elementary schools and secondary schools
educate students on healthy relationships. See generally 20 U.S.C.
1232a.
Once a recipient becomes aware of a barrier to reporting sex
discrimination, the recipient must take steps that are reasonably
calculated to address that
[[Page 33565]]
barrier. A recipient's response to such reporting barriers should be
tailored to the specific impediments and obstacles it identifies, and
recipients should choose strategies that work best given factors unique
to their educational environment. When a recipient deems it
appropriate, a response could include trainings targeted at a
particular academic department or other subdivision of the recipient
where the barriers were identified; in-depth training for specific
program staff; or widespread training for staff and students. Responses
contemplated by Sec. 106.44(b) could also include 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, central, and accessible location; provision of adequate staff
for the Title IX Coordinator's office; enhanced training for employees
with Title IX responsibilities, including training to ensure that they
are free of conflicts of interest and do not discourage reporting; and
the development and circulation of user-friendly Title IX materials. 87
FR 41436.
The Department acknowledges commenters' recommendation that Sec.
106.44(b) be modified to require recipients to follow up with
individuals who report sex discrimination to ensure they are not
experiencing further discrimination or retaliation due to their report
or complaint. The Department declines to mandate a particular response,
however, given the fact-specific nature of identifying barriers and a
recipient's need to respond as warranted by those facts. Instead, Sec.
106.44(b) will allow recipients to tailor their response to the
circumstances of their educational environment and the identified
barriers to reporting. Moreover, because additional discrimination and
retaliation are already prohibited by other provisions of these final
regulations, including Sec. Sec. 106.44 and 106.71, it is not
necessary to modify Sec. 106.44(b) as requested.
Some commenters may have misunderstood the purpose of Sec.
106.44(b), which is focused on barriers to reporting and does not
require monitoring related to sex discrimination more generally. The
Department appreciates the opportunity to clarify that the aim of Sec.
106.44(b) is to ensure that recipients require their Title IX
Coordinators to monitor for and address barriers in their education
programs or activities that would prevent or deter individuals from
reporting possible sex discrimination. So, for example, a recipient may
set up an online reporting system for sex discrimination complaints; if
individuals who wish to report information about possible sex
discrimination cannot access the reporting system, however, the lack of
access would constitute a barrier to reporting possible sex
discrimination. The recipient should therefore monitor the efficacy of
this online reporting system for access issues and take steps
reasonably calculated to address those issues to fulfill its
obligations under Sec. 106.44(b). Aspects of a recipient's campus
climate may also discourage or chill students from coming forward to
make a report of possible sex discrimination, in which case, a
recipient should monitor for and take steps reasonably calculated to
address such issues. For example, if a recipient were to learn from
staff that some students felt discouraged from reporting sex
discrimination or worried about retaliation if they were to make a
report, the recipient could conduct student focus groups or survey
students about why they feel discouraged from reporting or fear
retaliation. Depending on what the recipient learns, the recipient may
in response decide to include more readily available information on how
to report sex discrimination and emphasize a recipient's prohibition on
retaliation in required trainings for all students. Additionally, just
as a recipient's obligation to comply with Title IX is ongoing, its
obligation to monitor for and take steps reasonably calculated to
address barriers to reporting sex discrimination is ongoing.
The Department disagrees that Sec. 106.44(b) is vague. The
provision sets out two clear requirements. First, the Title IX
Coordinator must monitor the recipient's education program or activity
for barriers to reporting information about conduct that reasonably may
constitute sex discrimination under Title IX. The Department provides
examples of how to monitor such barriers above and in the July 2022
NPRM. 87 FR 41436. Second, when such barriers are identified, the Title
IX Coordinator must take steps reasonably calculated to address them.
The Department has also provided examples of how to address barriers,
above and in the July 2022 NPRM. Id. Section 106.44(b) does not require
a recipient's Title IX Coordinator to generally monitor all conduct in
its education program or activity. Rather, the provision imposes a
specific duty to monitor the recipient's education program or activity
for barriers to reporting sex discrimination, and to take steps
reasonably calculated to address those barriers.
In response to comments, the Department has changed the title of
this provision from ``Monitoring'' to ``Barriers to Reporting.''
Framing this provision around barriers to reporting sex discrimination
serves as a reminder to recipients and their staff that Sec. 106.44(b)
is about barriers in the recipient's education program or activity that
impede a recipient from ensuring that no individual is subjected to sex
discrimination in its education program or activity.
Changes: The Department changed the title of this provision from
``Monitoring'' to ``Barriers to Reporting.''
Reporting Channels
Comments: One commenter asked the Department to confirm that a
recipient's Title IX Coordinator would be required only to monitor
formal channels to reporting sex discrimination and not informal
channels, because, the commenter stated, monitoring informal channels
would undermine a recipient's confidential resources and deter
individuals from seeking support due to concerns of losing autonomy
over their reports. Another commenter characterized the notification
requirements in proposed Sec. 106.44(c) as creating a barrier to
reporting sex discrimination that would be subject to proposed Sec.
106.44(b).
Discussion: The Department is uncertain what the commenter means by
formal channels versus informal channels, but the Department confirms
that a recipient would not be permitted to compromise a recipient's
confidential resources in order to monitor for barriers to reporting.
However, if a recipient learns, for example, that some confidential
employees mistakenly believe that discrimination based on sexual
orientation or gender identity should not be reported to the Title IX
Coordinator and are discouraging individuals from making their own
reports of such discrimination to the Title IX Coordinator, then the
Title IX Coordinator would be required to take steps reasonably
calculated to address such barriers, for example, through publicizing
corrected information and training employees. The Department
acknowledges that some individuals may be deterred from seeking support
due to concerns of losing autonomy over their report. If a Title IX
Coordinator learns of such a barrier, the recipient could address the
barrier by, for example, developing and circulating user-friendly Title
IX materials or provide information sessions that clarify the available
support options, including confidential resources.
[[Page 33566]]
The Department disagrees that the notification requirements in
proposed Sec. 106.44(c) would create a barrier to reporting sex
discrimination. To the contrary, the notification requirements will
reduce barriers to reporting by ensuring that all employees of a
recipient know when and how to respond to reports and other information
about conduct that reasonably may constitute sex discrimination.
In response to comments, the Department has determined that,
consistent with changes in Sec. Sec. 106.44(a), (c), (e), (f), (j),
and (k) and 106.71 that are discussed more fully below, the final
regulatory text for Sec. 106.44(b) should be clarified to state that
the Title IX Coordinator must monitor for barriers to reporting related
to information about conduct that ``reasonably'' may constitute sex
discrimination. This change, in addition to addressing commenters'
concerns discussed below, helps clarify Sec. 106.44(b) by being more
specific about the monitoring required under the provision. The
Department has also added ``or this part'' to reference these
regulations, which include definitions that explain what conduct
reasonably may constitute sex discrimination.
Changes: Section 106.44(b) is revised to state that a recipient
must require its Title IX Coordinator to take the actions specified in
paragraphs (b)(1) and (2). Section 106.44(b)(1) is modified to specify
that the Title IX Coordinator's required action is to monitor for
barriers to reporting information about conduct that ``reasonably'' may
constitute sex discrimination under Title IX ``or this part.''
Free Speech and Academic Freedom
Comments: Commenters raised varied concerns that proposed Sec.
106.44(b) would restrict speech, limit constitutional rights, and
diminish academic freedom. Some commenters asked the Department to
clarify whether proposed Sec. 106.44(b) would require a Title IX
Coordinator to monitor for barriers to reporting sex discrimination in
the context of academic discourse, including discourse on controversial
topics or topics informed by religious or other beliefs. One commenter
opposed proposed Sec. 106.44(b) and stated that, contrary to Mahanoy,
141 S. Ct. 2038, it would require schools to monitor off-campus speech
that typically falls within the zone of parental control. Another
commenter asked the Department to clarify how a recipient would know
when actions on social media create a hostile environment for purposes
of fulfilling its obligations under proposed Sec. 106.44(b).
Discussion: As discussed above, Sec. 106.44(b) requires a
recipient to require its Title IX Coordinator to monitor for barriers
to reporting sex discrimination in its education program or activity
and to address any barriers to reporting the Title IX Coordinator
discovers through the monitoring efforts. As stated in the July 2022
NPRM, recipients are not expected to monitor students' online activity,
including social media. 87 FR 41440. And Sec. 106.44(b) does not
require recipients to monitor the academic discourse of students or
teachers in the classroom. The Department has consistently maintained
that Title IX is intended to protect students from invidious
discrimination, not to regulate constitutionally protected speech. OCR
interprets the laws and regulations that the Department enforces
consistent with free speech and other rights protected under the First
Amendment to the U.S. Constitution. The Department intends these Title
IX regulations to be interpreted consistent with rights protected under
the First Amendment, and the protections of the First Amendment must be
considered if issues of speech or expression are involved, including
academic freedom. For additional discussion of the First Amendment, see
the discussion of Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2) (Section I.C) (including the
discussion of Mahanoy) and the discussion of Sec. 106.44(a) above. See
also 2003 First Amendment Dear Colleague Letter.
The goal of Sec. 106.44(b) is to eliminate actual barriers or
impediments that would prevent or deter individuals from reporting
possible sex discrimination. Title IX's nondiscrimination mandate is
best served when persons are unobstructed in their ability to report
conduct that reasonably may constitute sex discrimination because that
reporting triggers the recipient's obligation to offer appropriate
supportive measures, initiate grievance procedures to determine whether
sex discrimination occurred, or allow a complaint to be resolved
through an informal resolution process, if available and appropriate.
It is doubtful that individual comments occurring in classrooms as part
of academic discourse, including speech conveyed as part of an
expression of sincerely held religious beliefs, would constitute a
``barrier'' to reporting within the meaning of Sec. 106.44(b). Were a
recipient to become aware that speech occurring in classrooms, no
matter the viewpoint being expressed, was creating a barrier to
reporting, it would be obligated to address those barriers in ways that
do not infringe on an individual's otherwise protected First Amendment
rights by, for example, clarifying the recipient's policies for
reporting possible sex discrimination.
To ensure that recipients and all members of a recipient's
education program or activity understand that Sec. 106.44(b) relates
to monitoring for barriers to reporting, the Department has changed the
title of Sec. 106.44(b) from ``Monitoring'' to ``Barriers to
Reporting.''
Changes: The Department has changed the title of Sec. 106.44(b)
from ``Monitoring'' to ``Barriers to Reporting.''
Compliance Burdens
Comments: Commenters expressed concerns about compliance burdens,
especially for large State university systems or smaller institutions
with fewer resources. Some commenters opposed requiring a recipient to
monitor for barriers to reporting sex discrimination and asserted that
a recipient's duty should be limited to responding to ``actual
knowledge'' of sex discrimination.
Some commenters expressed concern that proposed Sec. 106.44(b)
would place an undue burden or too much responsibility on Title IX
Coordinators, who would be required to monitor conduct and speech
regardless of whether a complaint is made or a concern is raised over
barriers to reporting sex discrimination.
One commenter asked the Department to modify proposed Sec.
106.44(b) to place the obligation to monitor and address barriers to
reporting sex discrimination on the recipient instead of the Title IX
Coordinator, whom the commenter asserted should coordinate and review
efforts by others at the institution to monitor and address barriers to
reporting sex discrimination.
Other commenters asked the Department to clarify that a Title IX
Coordinator is only required to monitor for barriers to reporting
related to conduct that an individual ``reasonably believes constitutes
sex discrimination under Title IX'' and to explain how a recipient
would be held accountable if its Title IX Coordinator failed to monitor
and address barriers to reporting sex discrimination.
Some commenters encouraged the Department to issue guidance that
would provide examples of how to monitor for barriers to reporting sex
discrimination under the proposed regulations.
Discussion: The Department acknowledges commenters' concerns
[[Page 33567]]
about potential compliance burdens but reiterates that federally funded
recipients assume the obligation to provide participants the
opportunity to attend education programs and activities free from sex
discrimination. To meet that obligation, recipients must ensure that
participants are able to share information with the recipient about
conduct and practices that reasonably may constitute sex
discrimination. Requiring recipients to monitor for barriers to
reporting is necessary for recipients to promptly and effectively
address sex discrimination when it occurs, and otherwise meet their
obligation to ensure that no individual is subjected to sex
discrimination in their education program or activity.
The Department also notes that the July 2022 NPRM provided
suggestions and examples of how a recipient could comply with Sec.
106.44(b) while acknowledging that recipients vary in size and
resources in ways that may impact how they implement this provision. 87
FR 41436. Recipients have the flexibility to determine which strategies
would be most appropriate and effective in their educational setting
and the Department declines to require specific actions. The Department
reiterates the importance of a recipient tailoring efforts to uncover
and address barriers to reporting sex discrimination to the methods and
strategies the recipient determines are likely to be most effective in
the recipient's setting. The Department further discusses the
regulations' flexibility elsewhere in this preamble, including in the
discussions related to the final regulations at Sec. 106.44(k)(1)
(flexibility to determine whether to afford an informal resolution
process that best serves the recipient's educational community) and
Sec. 106.45(b)(4) (flexibility to determine reasonably prompt time
frames for grievance procedures in light of a recipient's unique
setting).
Contrary to some commenters' objections, Sec. 106.44(b) does not
require a recipient to address barriers to reporting sex discrimination
in its education program or activity as a substitute for ``actual
knowledge.'' The provision ensures that recipients are proactive about
identifying barriers to reporting so that they are well-placed to
address sex discrimination in their education programs and activities
when it exists. The Department appreciates the opportunity to clarify
that the obligation to monitor for barriers to reporting is not
triggered only when a concern is raised over barriers to reporting. The
Title IX Coordinator must monitor for barriers regardless of whether a
concern has been raised about such barriers. The provision is therefore
an important part of a recipient's compliance program to ensure that
Title IX's nondiscrimination mandate is fulfilled. The Department
provides additional background and discussion of the actual knowledge
standard adopted by the 2020 amendments in the preamble discussion of
Sec. 106.44(a).
The Department acknowledges commenters' concerns that Sec.
106.44(b), alone and together with other provisions in these final
regulations, expand the scope of a Title IX Coordinator's duties and
responsibilities. These final regulations, including Sec. 106.44(b),
provide a role for a recipient's Title IX Coordinator that centralizes
duties, promotes accountability, and enables effective Title IX
compliance. To address concerns regarding the Title IX Coordinator's
capacity, a recipient may authorize its Title IX Coordinator to
delegate specific duties to one or more designees as long as one Title
IX Coordinator retains ultimate oversight over the assigned duties. See
Sec. 106.8(a)(2). Additional discussion related to the scope of the
Title IX Coordinator's role under these final regulations can be found
in the discussion of the Title IX Coordinator requirements under Sec.
106.44(f). Additionally, a discussion of the compliance burdens related
to these final regulations can be found in the discussion of the
Regulatory Impact Analysis.
In response to the commenter who asked the Department to modify
proposed Sec. 106.44(b) to place the obligation to monitor and address
barriers to reporting sex discrimination on the recipient instead of
the Title IX Coordinator, the Department notes that the proposed and
final regulations require the recipient to require the Title IX
Coordinator to take the prescribed action; the compliance obligation
thus falls on the recipient. The Department declines to require the
Title IX Coordinator to oversee only institution-wide efforts to
address barriers to reporting sex discrimination. Section 106.44(b)
appropriately requires recipients, through their Title IX Coordinators,
to monitor for barriers to reporting and gives Title IX Coordinators
discretion with respect to the manner in which they do so.
In response to the question about recipient accountability, a
recipient that fails to ensure that its Title IX Coordinator complies
with this duty will not meet the requirements of Sec. 106.44(b) and as
such, the recipient would then potentially be the subject of an
administrative enforcement action through which the recipient would be
provided notice and an opportunity to come into compliance.
The Department agrees that supporting recipients and Title IX
Coordinators in implementing these regulations is important. The
Department will offer technical assistance, as appropriate, to promote
compliance with these final regulations.
Changes: None.
3. Section 106.44(c) Notification Requirements
General Comments
Comments: Some commenters supported the notification requirements
because they would ensure that a recipient learns of possible sex
discrimination so it can operate its education program or activity free
from sex discrimination. Commenters also supported the proposed
regulations because it would clarify employee responsibilities,
especially for elementary school and secondary school employees.
Commenters also supported Sec. 106.44(c) on the grounds that it would
make it less burdensome for students, especially students with
disabilities, to report sex-based harassment and would not limit
actionable reporting to a narrow category of employees.
One commenter stated that proposed Sec. 106.44(c) is a departure
from the Department's previous guidance limiting the category of
employees with notification requirements. Another commenter stated that
the notification requirements would elevate sex discrimination over
other forms of discrimination.
Some commenters alleged that mandated reporting chills reporting.
Some commenters said institutions receive information from employees
and then take little or no action. Other commenters argued that the
proposed regulations would discourage complainants from seeking advice
or assistance from a trusted employee and others stated that mandatory
reporting negatively affects faculty members' ability to support
students.
Some commenters expressed concern about the lack of institutional
discretion to determine which employees should be mandatory reporters
and urged the Department to modify the proposed regulations to give the
recipient more discretion to categorize which employees must comply
with certain notification requirements. Some commenters objected to the
breadth of employees with notification duties.
Some commenters asked for supplemental guidance related to
notification requirements.
Discussion: The Department agrees that notification requirements in
[[Page 33568]]
Sec. 106.44(c) will help ensure that a recipient learns of sex
discrimination in its education program or activity so it can be
addressed. The Department also agrees that it is less burdensome for
students to report sex discrimination when more employees have
notification responsibilities that further Title IX's nondiscrimination
mandate. In response to one commenter stating that proposed Sec.
106.44(c) departs from the Department's prior guidance, the Department
has come to view broader notification requirements as more important in
the time since the previous guidance was issued and notes that prior
guidance interpreted the regulations and existing case law that
preceded the 2020 amendments.
The Department disagrees that these notification requirements
elevate sex discrimination over other forms of discrimination. Rather,
these requirements ensure that employees know what to do when they are
in receipt of information about conduct that reasonably may constitute
sex discrimination so that a recipient can take action to address it,
as is its obligation under Title IX. Nothing in these regulations
prevents a recipient from requiring similar notification requirements
for other forms of discrimination or harassment. The Department also
notes the discussion of different standards for other harassment in the
preamble to the 2020 amendments. 85 FR 30528.
The Department disagrees with commenters that the obligations under
Sec. 106.44(c) will chill reporting or compromise complainant
autonomy, which is accounted for throughout the regulations, including
in Sec. 106.44(f). Rather, Sec. 106.44(c) describes a recipient's
obligation to require employees (other than confidential employees as
addressed in Sec. 106.44(d)) to notify the Title IX Coordinator of
conduct that reasonably may constitute sex discrimination or, as
applicable, provide contact information for the Title IX Coordinator
and information about how to make a complaint of sex discrimination.
Commenters presented no persuasive evidence or reasons to believe that
this framework will so significantly deter reporting that the
provision's potential chilling effect outweighs its important benefits.
The Department is convinced that the final regulations will more
effectively implement Title IX and its commitment to eliminating sex
discrimination in a recipient's education program and activity. In
response to commenters who asserted that institutions do not take
action even when they receive information from employees, the
Department notes that under the final regulations a recipient must
require its Title IX Coordinator to take the actions outlined in Sec.
106.44(f)(1) to promptly and effectively end any sex discrimination in
its education program or activity, prevent its recurrence, and remedy
its effects. The Department is prepared to enforce this requirement
when it becomes aware that a recipient has declined to take the
required actions.
The Department also disagrees that Sec. 106.44(c) discourages
complainants from seeking advice or assistance from a trusted employee
or negatively affects faculty members' ability to support students. At
elementary schools and secondary schools, all non-confidential
employees must notify the Title IX Coordinator when the employee has
information about conduct that reasonably may constitute sex
discrimination. At postsecondary institutions once a student has
provided information to non-confidential employees, the employee must
either notify the Title IX Coordinator or, as applicable, provide the
Title IX Coordinator's contact information and information about how to
make a complaint of sex discrimination. A recipient, other than an
elementary school or secondary school, has discretion to determine
which of these actions employees who do not have authority to institute
corrective action or administrative leadership, teaching or advising
responsibility must take. 87 FR 41439. A recipient also has the
discretion, which the Department maintains is appropriate because
recipients vary in size, resources, and administrative structure, to
make confidential employees available who do not have notification
requirements, and these individuals can also provide confidential
support to students. See Sec. 106.44(d).
The Department declines to give recipients more discretion to
determine which employees should have certain notification
requirements. The notification requirements under Sec. 106.44(c) are
necessary to provide Title IX Coordinators, and therefore a recipient,
with the information needed to respond appropriately to sex
discrimination in its education program or activity. Title IX requires
that a recipient operate its education program or activity in a manner
that subjects no person to discrimination on the basis of sex; allowing
a recipient to designate a more limited subset of employees to report
discrimination than required under the final regulations would create a
risk that individuals in certain aspects of a recipient's education
program or activity would suffer from sex discrimination without that
discrimination being addressed.
The Department also notes that a recipient may not avoid compliance
with Sec. 106.44(c) by requiring reporting to an external third party,
as it must still ensure that the report reaches the Title IX
Coordinator. If the Title IX Coordinator has delegated its duties by
requiring reporting to the external third party, it must still exercise
oversight over those delegated responsibilities to ensure a recipient's
consistent compliance with its responsibilities under Title IX and this
part.
In response to requests for supplemental guidance and technical
assistance, the Department agrees that supporting recipients and Title
IX Coordinators in implementing these regulations is important. The
Department will offer technical assistance, as appropriate, to promote
compliance with these final regulations.
As discussed below, the Department was persuaded that the
notification requirements should be streamlined and clarified to
facilitate compliance, and the Department has done so in the final
regulations.
Changes: The notification requirements are streamlined and
clarified as explained below, including by dividing Sec. 106.44(c)
into subsections to more clearly delineate notification requirements
for different categories of employees.
Consistency With State Laws
Comments: Some commenters expressed concern about inconsistency
with State laws that already require public school employees to notify
their principal or supervisor when they become aware of potential sex
discrimination or sex-based harassment instead of the Title IX
Coordinator.
Discussion: Nothing in these final regulations precludes a
recipient from complying with both these regulations and State and
local laws that do not conflict. See 87 FR 41404-05; 85 FR 30454. see
also New York, 477 F. Supp. 3d at 299 (regulation was not arbitrary and
capricious when, among other things, the Department appropriately
``concluded that the Rule did not prevent recipients from complying
with state and local laws and policies'' and commenters had not raised
``any actual conflicts with state law'').
Employees who are required to report sex discrimination to a
supervisor can and should continue to do so. It is not necessarily
inconsistent to also require employees to notify the Title IX
Coordinator or an appropriate Title IX Coordinator designee. With
respect to
[[Page 33569]]
State laws that may impose notification requirements related to sex
discrimination or sexual harassment, the obligation to comply with
Title IX and the final regulations is not obviated or alleviated by any
such State or local law or other requirement. See Sec. 106.6(b). The
commenters did not identify a conflict between these final regulations
and the referenced State or local laws, but if one did exist, the
recipient's obligations under Title IX remain. Id. Whether a conflict
exists must be determined based on the facts and the specific
requirements under State or local law.
Changes: None.
Scope of Conduct Subject to Sec. 106.44(c)
Comments: Several commenters suggested replacing ``conduct that may
constitute sex discrimination under Title IX'' in proposed Sec.
106.44(c) with ``conduct the employee reasonably believes constitutes
sex discrimination under Title IX.'' One commenter stated that proposed
Sec. 106.44(c) would not require an employee to have a reasonable
basis for believing that a disclosure of possible sex discrimination
was reliable, which, the commenter argued, would divert resources from
meritorious complaints.
Some commenters expressed concern about the scope of reportable
conduct. One commenter asserted that the broad array of conduct that
must be reported would impose substantial obligations on recipients and
urged the Department to clarify the scope of covered sex discrimination
in proposed Sec. 106.44(c). Another commenter argued that the scope of
reportable conduct would be overly broad because proposed Sec.
106.44(c) would require notification of conduct that ``may constitute''
sex discrimination.
Discussion: The Department is persuaded by commenters that the
final regulations should require notification of conduct that
``reasonably'' may constitute sex discrimination under Title IX, as
discussed above. Limiting the scope of conduct to that which a
recipient must respond based on a reasonable assessment, addresses a
commenter's concern that Sec. 106.44(c) as proposed would have
diverted resources from meritorious complaints.
The Department acknowledges the concern about the scope of
reportable conduct. The Department maintains that employees should be
able to assess conduct under a standard that requires them to act based
on information about conduct that reasonably may constitute sex
discrimination under the recipient's program or activity. As discussed
in the July 2022 NPRM, it is not necessary for the employee to have
factual information that definitively indicates that sex discrimination
occurred in order for the employee's notification requirements under
Sec. 106.44(c) to apply. 87 FR 41440. 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. Id. For this
reason, the Department has modified Sec. 106.44(c) to refer to conduct
that ``reasonably'' may constitute sex discrimination under Title IX.
The Department also notes that under Sec. 106.8(d)(1), a recipient
will be required to train all employees on the scope of conduct that
constitutes sex discrimination under Title IX, including sex-based
harassment. This training requirement will help recipients ensure that
employees are able to recognize when information reported to them
reasonably may constitute sex discrimination under Title IX. The
Department maintains that speculative risk of an investigation of
conduct that may not reasonably constitute sex discrimination outweighs
the benefit of ensuring that the Title IX Coordinator learns of conduct
that reasonably may constitute sex discrimination, including sex-based
harassment, under a recipient's education program or activity. The
Department does not think it is appropriate to require employees, in
the first instance, to make a determination as to whether the conduct
reported or the information learned meets every aspect of this
regulation's definition of sex discrimination, including sex-based
hostile environment harassment. Rather, under the final regulations, an
employee must respond to conduct or information that could reasonably
meet that definition.
The Department appreciates the opportunity to clarify that if an
employee directly witnesses conduct under the recipient's program or
activity that reasonably may constitute sex discrimination, including
sex-based harassment, the employee will be considered to have
``information about conduct that reasonably may constitute sex
discrimination'' under Sec. 106.44(c) of the final regulations. In
such circumstances, the employee is required to report the information
to the Title IX Coordinator, or, as applicable, provide the Title IX
Coordinator's contact information and information about how to make a
complaint of sex discrimination to the person who was subjected to the
conduct.
Changes: The final regulations require notification to the Title IX
Coordinator when the employee has information about conduct that
``reasonably'' may constitute sex discrimination under Title IX ``or
this part,'' which encompasses definitions that explain what reasonably
may constitute sex discrimination.
Disclosures
Comments: Some commenters raised concerns about recipients
disclosing information obtained through the notification requirements
in proposed Sec. 106.44(c). One commenter expressed concern that the
notification requirements in proposed Sec. 106.44(c) could lead to
disclosure of an LGBTQI+ student's identity or expose a student to
potential legal consequences for terminating a pregnancy. Some
commenters suggested that the Department require recipients to place
their reporting protocols online so that employees and students can
easily determine who has mandatory reporting duties. Other commenters
stated that employees who are not confidential employees should be
trained to disclose their reporting requirements in advance and also at
the time of a possible disclosure of an alleged incident of sex
discrimination.
Discussion: The Department acknowledges concerns about disclosures
and notes that the final regulations include Sec. 106.44(j), which
prohibits the disclosure of personally identifiable information
obtained in the course of complying with this part, except in limited
circumstances, such as to a parent, guardian, or other authorized legal
representative with the legal right to receive disclosures on behalf of
the person whose personally identifiable information is at issue. For
additional information on this topic, see the discussion of Sec.
106.44(j). The Department also notes that under Sec. 106.8(c)(1), 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. The notice of nondiscrimination must include
information on how to report information about conduct that may
constitute sex discrimination under Title IX and how to make a
complaint of sex discrimination. Through this process, a recipient may
include information about employees' notification requirements and
confidential employees, but the Department declines to require
[[Page 33570]]
reporting protocols to be posted online, because it prefers to leave
recipients with flexibility to meet these requirements.
In response to comments, however, the Department has modified Sec.
106.44(d)(2) to require a confidential employee to explain to any
person who informs the confidential employee of conduct that reasonably
may constitute sex discrimination under Title IX or this part of the
circumstances in which the employee is not required to notify the Title
IX Coordinator. The recipient must ensure that all employees are
trained on all applicable notification requirements under Sec. 106.44.
See Sec. 106.8(d).
The Department acknowledges the concern that a non-confidential
employee who receives information about conduct that reasonably may
constitute sex discrimination may, in the course of carrying out their
notification obligations, identify a student as having been subject to
sex discrimination based on sexual orientation or gender identity. To
the extent disclosure of such information to the Title IX Coordinator
is necessary for the recipient to address sex discrimination in its
education program or activity, the Department maintains that such
disclosure is justified and would be permitted by Sec. 106.44(j)(3) to
carry out the purposes of 34 CFR part 106. With regard to concerns
about disclosures of personally identifiable information, Sec.
106.44(j) generally prohibits the disclosure of personally identifiable
information the recipient obtains in the course of complying with the
Title IX regulations, which protects personal information of all
students, including LGBTQI+ students and students who are pregnant or
experiencing pregnancy-related conditions. As noted above and as
explained in the discussion of Sec. 106.44(j), that provision does not
prohibit disclosures to a minor student's parent, guardian, or
authorized legal representative who has the legal right to receive
disclosures on behalf of the person whose personally identifiable
information is at issue. For further explanation of the limited
circumstances under which personally identifiable information obtained
in the course of complying with this paragraph could be disclosed, see
the discussion of Sec. 106.44(j).
Changes: None.
Compliance Burdens
Comments: Some commenters questioned whether a Title IX Coordinator
would be best positioned to provide emotional support to survivors. One
commenter stated that the proposed regulations increase the scope of
the Title IX Coordinator's role without considering the Title IX
Coordinator's preexisting responsibilities and that, even though they
have permission to delegate some duties, Title IX Coordinators remain
solely responsible for all administrative tasks.
Some commenters asserted that proposed Sec. 106.44(c) would impose
an undue and unworkable burden on recipients, increasing the cost of
attendance in higher education. Commenters also referenced the cost of
litigation over whether a recipient's mandatory reporting policy
implementation was negligent. One commenter asserted that confusion
related to proposed Sec. 106.44(c)(2) would incentivize recipients to
make everyone a mandatory reporter to minimize risk.
Discussion: The Department recognizes that the final Title IX
regulations increase the scope of the Title IX Coordinator's duties.
Under Sec. 106.8(a), as discussed elsewhere in this preamble, a
recipient may have more than one Title IX Coordinator, and a Title IX
Coordinator may designate employees to carry out some of its
obligations, but a recipient must designate one of its Title IX
Coordinators to retain ultimate oversight over those responsibilities
and ensure the recipient's consistent compliance with its
responsibilities under Title IX. See Sec. 106.8(a)(2). To the extent
Sec. 106.44(c) places a burden associated with providing notifications
under this provision on recipients, such burdens are justified because
the requirements will help recipients meet their obligation to address
sex discrimination in their education program or activity.
The Department disagrees that Sec. 106.44(c) would impose an undue
and unworkable burden on recipients, which could increase the cost of
attendance in higher education. The Department has considered the
costs, including potential litigation costs, in the Regulatory Impact
Analysis and determined the benefits of the notification requirements
justify the costs. The Department also has no reason to believe that
the costs associated with Sec. 106.44(c) are so great that they are
likely to increase the overall cost of attending higher education
institutions.
Changes: None.
First Amendment
Comments: Some commenters asserted that the notification
requirements in proposed Sec. 106.44(c) would chill protected speech
and run afoul of the First Amendment because protected speech will be
reported. Some commenters asked the Department to exempt certain
disclosures from notification requirements because a student is
unlikely to expect such disclosures to trigger notification to the
Title IX Coordinator, such as those made at a public awareness event;
in an application or other personal statement or interview; and in an
anonymous school climate survey. Other commenters recommended
exemptions for disclosures within a social media post, an academic
assignment, or a research project.
Some commenters expressed concern that notification requirements
would result in a conflict with an employee's religious beliefs. For
example, one commenter stated that proposed Sec. 106.44(c) would
require an employee to notify the Title IX Coordinator of all possible
conduct that might create a hostile environment, despite the employee's
professional judgment or personal beliefs about the scope of Title IX.
The commenter recommended that the Department modify proposed Sec.
106.44(c) to allow an employee to not notify the Title IX Coordinator
in certain circumstances.
Discussion: The Department disagrees that the notification
requirements in Sec. 106.44(c) will run afoul of the First Amendment
and the Department has consistently maintained that Title IX is
intended to protect students from invidious discrimination, not to
regulate constitutionally protected speech. The notification
requirement in Sec. 106.44(c) generally requires employees to notify
the Title IX Coordinator when the employee has information about
conduct that reasonably may constitute sex discrimination under Title
IX or this part. Consistent with the discussion of First Amendment case
law in this preamble, academic discourse of students or teachers
generally would not meet this standard. First Amendment considerations
are addressed at length in the section on First Amendment
Considerations in the definition of ``sex-based harassment'' in Sec.
106.2. The Department is fully committed to freedom of speech and
academic freedom, and the Department reaffirms the importance of the
free exchange of ideas in educational settings and particularly in
postsecondary institutions, consistent with the First Amendment. Thus,
nothing in the Title IX regulations restricts any rights that would
otherwise be protected from government action by the First Amendment.
See 34 CFR 106.6(d).
The Department declines to exclude information from notification
requirements in some of the circumstances suggested by
[[Page 33571]]
commenters, such as in applications, interviews, and personal
statements. To the extent these materials may provide a recipient with
information about conduct that reasonably may constitute sex
discrimination within the recipient's education program or activity,
notification is important to allow the recipient to address the
discrimination. In contrast to applications, interviews, and personal
stories, public awareness events serve many benefits including
empowering and informing students and thus it is appropriate to include
a limited exception to the required action that a postsecondary
institution must take in response to notification of information about
conduct that reasonably may constitute sex-based harassment shared at
such events. Public awareness events are discussed further in the
discussion of Sec. 106.44(e), which provides a limited exception to
the required action that a postsecondary institution must take in
response to notification of information about conduct that reasonably
may constitute sex-based harassment.
The Department notes and references the discussion of religious
liberty in the discussion of Hostile Environment Sex-Based Harassment--
First Amendment Considerations (Sec. 106.2) (Section I.C). As stated
above and reflected in Sec. 106.6(d), the Title IX regulations do not
require a recipient to restrict any rights protected from government
action by the First Amendment, including the freedom of speech, the
free exercise of religion, or the freedom of association. In addition,
the Department notes that Title IV of the Civil Rights Act of 1964,
which is enforced by the Department of Justice's Civil Rights Division,
specifically authorizes the Attorney General to respond to certain
complaints alleging religious discrimination against students in public
schools and higher education institutions, and Title VII prohibits
religious discrimination in employment. The Department declines to
modify its Title IX regulations to exempt individual employees from the
notification requirements of Title IX when there may be a conflict with
an employee's religious beliefs because Title IX imposes obligations on
recipients as opposed to employees. The Title IX statute allows the
Department to implement the statute's qualified exemption for certain
religious institutions, but the statute contains no comparable
exemption for individuals. 20 U.S.C. 1681(a)(3). It is within the
Department's regulatory authority to define the scope of Title IX
regulations consistent with the statute, and an individual employee's
personal beliefs about the scope of Title IX cannot alleviate the
recipient's responsibilities to comply with the regulations.
Changes: None.
Due Process
Comments: Some commenters critiqued the proposed regulation's broad
reporting requirement as inadequately protective of a respondent's due
process rights. In the view of these commenters, the proposed
regulations would lead to over-reporting, which would harm respondents
because they would be subject to investigations and face discipline.
Discussion: The Department disagrees that Sec. 106.44(c) is not
protective of respondents' due process rights or that it will lead to
over-reporting. As discussed above, employees have a duty to act only
upon information that reasonably may constitute sex discrimination in
the recipient's education program or activity--not allegations of sex
discrimination that do not meet this standard. Notification under these
circumstances does not impair a respondent's due process rights, but
rather may lead to processes designed to protect those rights. Not all
reports pursuant to Sec. 106.44(c) will result in investigation, and
not all investigations will result in grievance procedures against
respondents. For those that do, the grievance procedures in Sec.
106.45, and if applicable Sec. 106.46, provide respondents with a fair
process, as explained in the discussions of the various provisions of
Sec. Sec. 106.45 and 106.46 and in Framework for Grievance Procedures
for Complaints of Sex Discrimination (Section II.C).
Changes: None.
Complainant Autonomy and Mandatory Reporting
Comments: Some commenters argued that mandatory reporting violates
the autonomy of complainants and their ability to request
confidentiality and decide when to initiate grievance procedures.
Some commenters expressed concern that the efficacy of mandatory
reporting is not supported by empirical evidence and cited numerous
studies. As an example, commenters stated that researchers have found
that a policy that requires an employee to report all incidents of
suspected sex discrimination against a student to a Title IX
Coordinator, even when the student neither expects nor wants the
employee to do so, forces the employee to betray the student's trust,
violates student autonomy, and could subject the student to grievance
procedures they explicitly preferred to avoid. One commenter stated
that often recipients fail to act when they receive a report either
because the complainant declines to participate in grievance procedures
or the recipient determines that the conduct does not violate any
policy. The commenter stated that these trends indicate that mandatory
reporting is ineffective.
Some commenters suggested that employees should be required to
provide information about confidential employees to complainants and
some expressed concern that delineating responsibility between
confidential employees and non-confidential employees may result in
incidents going unaddressed.
Discussion: The Department has heard commenters' concerns that the
proposed regulations would violate the autonomy of complainants. The
Department clarifies that even after a Title IX Coordinator is notified
of conduct that reasonably may constitute sex discrimination under
Sec. 106.44(f), complainants retain autonomy over whether to make a
complaint. Only in very limited circumstances do the regulations
contemplate that a Title IX Coordinator may initiate a complaint after
a complainant has declined to do so. See Sec. 106.44(f)(1)(v).
Notably, Sec. 106.44(f)(1)(v)(A)(1) includes a complainant's request
not to proceed with a complaint investigation as a factor the Title IX
Coordinator must consider when determining whether to initiate a
complaint of sex discrimination. The Department has determined that
complainant autonomy and the ability to seek out confidential resources
is better supported through requirements for confidential employees
under Sec. 106.44(d) and requirements for Title IX Coordinators under
Sec. 106.44(f), rather than by limiting the category of employees who
must notify the Title IX Coordinator of conduct that reasonably may
constitute sex discrimination under Title IX or this part. It is
critical for the Title IX Coordinator to receive notice of such conduct
for the recipient to address sex discrimination in its education
program or activity.
The Department understands, as noted by commenters, that
complainants may not always disclose their experiences with the intent
to initiate grievance procedures and may be seeking support and
guidance. The Department appreciates the opportunity to clarify that,
regardless of whether a complainant seeks to initiate the grievance
procedures, Sec. 106.44(f)(1)(ii) will require the Title IX
Coordinator to offer and, if accepted, coordinate
[[Page 33572]]
supportive measures under Sec. 106.44(g), as appropriate, for the
complainant. In addition, Sec. 106.44(f)(1)(iii)(A) requires the Title
IX Coordinator to notify the complainant or, if the complainant is
unknown, the individual who reported the conduct, of the grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, as well
as the informal resolution process under Sec. 106.44(k), if available
and appropriate.
The Department also notes that, under Sec. 106.8(c)(1)(i)(E), a
recipient must include information about how to report information
about conduct that may constitute sex discrimination under Title IX and
how to make a complaint of sex discrimination in its notice of
nondiscrimination and under Sec. 106.8(c)(1)(i)(D) a recipient must
include how to locate its nondiscrimination policy and grievance
procedures in its notice of nondiscrimination. A recipient may include
information about employees' duties to notify the Title IX Coordinator
when they have information, including through a report from a
complainant, about conduct that reasonably may constitute sex
discrimination under Title IX as part of the description of how to
report information about conduct that may constitute sex discrimination
in its notice of nondiscrimination or in its nondiscrimination policy.
The Department acknowledges the articles and research cited by
commenters regarding the efficacy of mandatory reporting. As discussed
in the July 2022 NPRM and the 2020 amendments, the extent to which a
universal mandatory reporting system is beneficial or detrimental to
complainants is difficult to determine and research to date is
inconclusive. See, e.g., 87 FR 41438. Moreover, some of the articles
and research cited by the commenters do not directly support the
commenters' assertions regarding mandatory reporting, while others
provide a more nuanced view, with conflicting evidence on mandatory
disclosure.\31\ The Department has assessed the conflicting evidence
provided by the commenters and has concluded that the reporting
requirements in Sec. 106.44(c) are appropriate. See, e.g., Associated
Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 110 (1st Cir. 1997)
(``When an agency is faced with conflicting scientific views and
chooses among them, its decision cannot be termed arbitrary or
capricious.''). Also, while some commenters cite to articles discussing
the concept of institutional betrayal in support of their position that
mandatory reporting may violate a student's autonomy and betray their
trust in the institution, a review of the articles cited by the
commenters provides a more fulsome description of the myriad reasons
that survivors of sexual assault may experience institutional betrayal,
some of which may be alleviated, rather than exacerbated, by the
notification requirements in the final regulations.\32\ For example, an
institutional environment that is conducive to sexual assault; an
institution's failure to adequately address reports of sexual assault,
including lack of follow-up; and an institution's harmful response to
reports of discrimination, such as blaming or punishing survivors for
the violence committed against them.\33\ These institutional failings
illustrate the need to consider recipients' duty to address sex
discrimination in their education programs and activities alongside
complainant autonomy, which, as discussed elsewhere in this preamble,
the final regulations were constructed to carefully consider.
---------------------------------------------------------------------------
\31\ See, e.g., Merle H. Weiner, A Principled and Legal Approach
to Title IX Reporting, 85 Tenn. L. Rev. 71, 103-05 (2017); National
Academies of Science, Engineering, & Medicine, Sexual Harassment of
Women: Climate, Culture, and Consequences in Academic Sciences,
Engineering, and Medicine, 105-107 (2018).
\32\ See, e.g., Carly Parnitzke Smith & Jennifer J. Freyd,
Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual
Trauma, 26 J. Traumatic Stress 119 (2013); Nicole Bedera, Settling
for Less: How Organizations Shape Survivors' Legal Ideologies Around
College Sexual Assault (2021) (Ph.D. dissertation, University of
Michigan).
\33\ See, e.g., Carly Parnitzke Smith & Jennifer J. Freyd,
Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual
Trauma, 26 J. Traumatic Stress 119 (2013); Nicole Bedera, Settling
for Less: How Organizations Shape Survivors' Legal Ideologies Around
College Sexual Assault (2021) (Ph.D. dissertation, University of
Michigan).
---------------------------------------------------------------------------
Respecting complainant autonomy while also ensuring an adequate
response to sex discrimination can be achieved, in part, by requiring
postsecondary institutions to provide clarity regarding ``confidential
employees,'' whom students may confide in without automatically
triggering a report to the Title IX Coordinator. See 85 FR 30043.
Notably, some of the literature referenced by commenters opposing
mandatory reporting describes the importance of clarity in
communicating information about confidential resources as well as
mandatory reporters so that complainants can make informed decisions.
Section 106.44(d)(1) requires a recipient to notify all participants in
the recipient's education program or activity of how to contact its
confidential employees, and a recipient must require a confidential
employee to explain to any person who informs the confidential employee
of conduct that reasonably may constitute sex discrimination of the
employee's confidential status, how to contact the Title IX
Coordinator, and that the Title IX Coordinator may be able to offer and
coordinate supportive measures, as well as initiate an informal
resolution process or an investigation under the grievance procedures.
See Sec. 106.44(d)(2). Although some individuals who contact
confidential employees may choose not to make a complaint, designating
some employees as confidential employees supports the recipient's
overall responsibility to address sex discrimination. The Department
disagrees that reporting to confidential employees will result in
incidents going unaddressed; rather, such reporting allows incidents to
be addressed in a manner consistent with a complainant's desires by
facilitating the complainant's ability to seek supportive measures or
initiate a complaint when and if the complainant desires to do so.
As discussed in the July 2022 NPRM, the Department has determined
that complainant autonomy would be better supported by including a
definition of ``confidential employee'' and providing requirements for
such employees, than by limiting the scope of non-confidential
employees who must notify the Title IX Coordinator of conduct that may
constitute sex discrimination. 87 FR 41439. Nevertheless, a
complainant's desire to pursue a complaint or not should be relevant in
a recipient's determination whether to initiate a Title IX complaint as
provided under Sec. 106.44(f)(1)(v)(A)(1) and explained in the
discussion of Sec. 106.44(f) below. The Department maintains that the
final regulations carefully balance complainant autonomy and the need
to address sex discrimination so all students, employees, and others
can participate in a recipient's education program or activity without
fear of sex discrimination.
Changes: None.
Training Regarding Notification Requirements
Comments: Some commenters expressed concern that employees who
would have notification requirements under proposed Sec. 106.44(c)
would not be appropriately trained to respond to a disclosure of
possible sex discrimination because the various notification
requirements under proposed Sec. 106.44(c) would make it too
challenging and overly burdensome to train employees.
[[Page 33573]]
Discussion: As described in more detail below, the Department is
persuaded that the notification requirements proposed in the July 2022
NPRM should be simplified. The details of revised Sec. 106.44(c) are
discussed below. The Department maintains that the revised notification
framework will make it easier for recipients to implement and train on
the requirements and address sex discrimination in its education
program or activity.
Changes: The changes to the notification requirements are described
under the paragraphs of Sec. 106.44(c), below.
General Comments Related to Sec. 106.44(c)(1)
Comments: Some commenters supported mandatory reporting for younger
children under Title IX, noting that these students are not informed
about which employees have the authority to address sex discrimination,
including sex-based harassment, and likely think it will be addressed
by anyone who receives the disclosure. Commenters noted that elementary
school and secondary school employees may also have obligations to
report possible sexual abuse under mandatory State reporting laws, and
some commenters stated that elementary school and secondary school
employees can reasonably be trained to identify sex discrimination.
Some commenters objected to proposed Sec. 106.44(c)(1), stating
that it would create a new duty for employees in elementary school and
secondary schools.
Discussion: Under these regulations, the notification requirement
applies to conduct that reasonably may constitute sex discrimination,
including sex-based harassment, for the same universe of employees at
elementary schools and secondary schools that applied under the 2020
amendments--all employees--except that Sec. 106.44(c)(1) exempts
confidential employees from the requirement to notify the Title IX
Coordinator.
The final regulations for an elementary school or secondary school
recipient are similar to that which was proposed, with the addition of
``reasonably'' to describe the conduct that is subject to the
notification requirement, and the addition of ``or this part'' to
reference these regulations, which address definitions that explain
what reasonably may constitute sex discrimination.
Changes: The Department has revised Sec. 106.44(c)(1) to state
that 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 they have information about conduct that
``reasonably'' may constitute sex discrimination under Title IX ``or
this part.''
Employee Complainants--Sec. 106.44(c)(1)
Comments: Some commenters recommended that the Department consider
modifications to proposed Sec. 106.44(c)(1) to treat disclosures of
possible sex discrimination involving an employee complainant
differently from disclosures involving a student complainant, arguing
that an adult employee can notify the Title IX Coordinator themselves.
Discussion: The Department considered commenters' suggestion that
Sec. 106.44(c)(1) treat disclosures from students and employees
differently. The Department has determined, however, that employees--
just like students--may not always realize that they have been
subjected to discrimination; that the recipient has a duty to address
such discrimination; and that a Title IX Coordinator is available to
help the recipient do so. In addition, based on the comments to the
July 2022 NPRM, the Department has determined that simplifying the
notification requirements will better serve the purpose of addressing
sex discrimination in recipients' education programs and activities.
The Department has accordingly removed a distinction between students
and employees in Sec. 106.44(c)(2) and declines to add such a
distinction in Sec. 106.44(c)(1). As commenters noted, when complaints
are not reported to and addressed by the Title IX Coordinator,
allegations of sex discrimination can go unaddressed and the grievance
procedure requirements in these regulations will not be effective.
Changes: As described below, the Department has removed the
distinction between students and employees in Sec. 106.44(c)(2).
Law Enforcement
Comments: One commenter stated that, in elementary schools and
secondary schools, typically law enforcement is contacted to
investigate without considering the wishes of the student complainant
and that administrator-initiated investigations do not typically
involve the Title IX Coordinator and tend to be disorganized and lack
transparency.
Discussion: The Department does not have the authority to control
situations in which law enforcement is required to be involved as those
situations are generally covered by State, local, or other Federal laws
and involve requirements and processes that are separate from Title IX.
As for Title IX, which the Department does have the authority to
enforce, including through these final regulations, the Department has
put in place the protections described above.
Changes: None.
Age-Appropriateness
Comments: One commenter expressed concern that proposed Sec.
106.44(c)(1) would fail to account for the likely immaturity of minor
students in an arbitrary and capricious manner. The commenter provided
an example of a second-grade girl excluded by a group of boys from
their kickball team. The commenter asserted that if the girl were to
tell a teacher what happened, the teacher would be required to report
the matter to the Title IX Coordinator.
Discussion: The Department disagrees that proposed Sec.
106.44(c)(1) fails to account for the immaturity of minor students. The
determination whether sex discrimination, including sex-based
harassment, has occurred in a recipient's education program or activity
is necessarily dependent on the context. The Department notes that the
determination whether conduct constitutes hostile environment sex-based
harassment requires the consideration of the parties' ages, which would
account for the maturity level of minor students, among many other
contextually specific factors. The Department clarifies that the
regulations do not preclude a teacher from drawing on their required
training under Sec. 106.8(d)(1)(ii) and exercising their judgment and
taking into account the parties' ages--and indeed the regulations
require them to do so--in assessing whether the alleged conduct
reasonably may constitute sex discrimination under Title IX or this
part. The Department has also added ``or this part'' to reference these
regulations, which address definitions that explain what conduct
reasonably may constitute sex discrimination.
Changes: The final regulations require all employees of an
elementary school or secondary school who are not confidential
employees to notify the Title IX Coordinator when they have information
about conduct that ``reasonably'' may constitute sex discrimination
under Title IX ``or this part.''
General Comments Related to Sec. 106.44(c)(2)
Comments: Some commenters stated that proposed Sec. 106.44(c)(2)
was too
[[Page 33574]]
complex, would confuse complainants and non-confidential employees
about notification requirements, risk complainants not having the
information they need, require extensive training, and be impossible to
monitor. Commenters urged the Department to simplify proposed Sec.
106.44(c)(2) to help both students and employees easily understand who
has notification requirements and when. Some commenters urged the
Department to modify proposed Sec. 106.44(c)(2) to succinctly and
clearly designate specific categories of employees who must notify the
Title IX Coordinator of information related to sex discrimination and
provide a recipient flexibility to impose notification requirements on
additional employees. Commenters asserted that proposed Sec.
106.44(c)(2) will confuse employees and students and be inefficient and
difficult for a recipient to implement. Some commenters noted that an
employee could fall under various categories in proposed Sec.
106.44(c)(2) due to fluctuating job duties and responsibilities and
questioned the feasibility of requiring a recipient to retrain each
employee any time their duties shifted.
Some commenters disagreed with the assertion in the July 2022 NPRM
that postsecondary students may be less capable of self-advocacy than
employees as a justification for the Department's proposal of different
notification requirements for when a student as opposed to an employee
is being subjected to sex discrimination.
Some commenters said that many postsecondary institutions currently
require any non-confidential employee to notify the Title IX
Coordinator of any case of possible sex discrimination.
Commenters offered a number of alternatives to proposed Sec.
106.44(c)(2). For example:
Eliminate proposed Sec. 106.44(c)(2) so that proposed
Sec. 106.44(c)(1) would apply to any recipient.
Modify proposed Sec. 106.44(c)(2)(i)-(ii) to apply only
to any employee who a student could reasonably believe has the
authority or ability to address a sexual harassment complaint.
Require notification to the Title IX Coordinator if the
potential target of discrimination is a minor, and provision of the
contact information for the Title IX Coordinator if the potential
target of discrimination is an adult.
Modify proposed Sec. 106.44(c) so that only an employee
in an administrative or leadership position must notify the Title IX
Coordinator of possible sex discrimination.
Categorize employees as one of (1) confidential employees,
(2) employees providing support, or (3) officials required to report as
a model that the Department could adopt in final regulations.
Align proposed Sec. 106.44(c)(2)'s notification
requirements with the Clery Act and require training based on the
likelihood that an employee will receive disclosures related to sex
discrimination.
Restrict mandatory reporting obligations to a group of
designated reporters that is determined in consultation with faculty
governance processes, collective bargaining, and collaborative
engagement with students and others invested in addressing campus
inequities, and consistent with any other Federal or State reporting
requirements.
Expand the categories of employees who are required to
comply with Sec. 106.44(c) to include resident assistants, science lab
monitors, tech lab monitors, athletic and workout facility workers,
volunteers and contractors who provide significant aids and benefits,
including athletic coaches, extracurricular coordinators, and other
individuals whose duties and interactions with students foster close
relationships with students.
Expand reportable conduct under proposed Sec.
106.44(c)(2)(ii) so that a covered employee would be required to notify
the Title IX Coordinator of any conduct that may constitute sex
discrimination regardless of whether the person subjected to the
conduct is a student or employee.
Discussion: The Department is persuaded by commenters that Sec.
106.44(c)(2) should be streamlined and simplified to avoid confusion
and to clearly delineate notification responsibilities at recipients
other than elementary schools and secondary schools. As stated in the
July 2022 NPRM, 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, in addition to being mandatory reporters of child abuse under
State laws. 87 FR 41437. Therefore, requiring all non-confidential
employees in these schools to notify the Title IX Coordinator about
conduct that reasonably may constitute sex discrimination under Title
IX or this part would implement Title IX's guarantee of protection
against sex discrimination in a manner that best serves the needs and
expectations of those students. Id. In the postsecondary school
context, however, the Department has adopted a more nuanced approach
that gives greater weight to complainant autonomy and reflects the more
complex administration of postsecondary institutions. 87 FR 41438-39.
Specifically, under paragraph (c)(2), all recipients other than
elementary schools and secondary schools, including postsecondary
institutions, must distinguish between two categories of employees who
are not confidential employees: (1) those who either have authority to
institute corrective measures on behalf of the recipient or
responsibility for administrative leadership, teaching, or advising in
the recipient's education program or activity (``Category 1''); and (2)
all other employees who are not confidential employees and not covered
under Category 1 (``Category 2''). Category 1 employees must notify the
Title IX Coordinator when the employee has information about conduct
that reasonably may constitute sex discrimination under Title IX or the
regulations. This requirement is the same as that which applies to non-
confidential employees at elementary schools and secondary schools,
which is appropriate because of the authority and leadership roles
Category 1 employees hold, as discussed further below. Category 2
employees must either notify the Title IX Coordinator when the employee
has information about conduct that reasonably may constitute sex
discrimination under Title IX or the regulations, or provide the
contact information of the Title IX Coordinator and information about
how to make a complaint of sex discrimination to any person who
provides the employee with information about conduct that reasonably
may constitute sex discrimination under Title IX or the regulations.
The recipient will have discretion to determine which of these two
actions Category 2 employees must take or whether to leave the
discretion to those employees.
In response to commenters' concerns, the final regulations no
longer differentiate obligations based on whether the employee is
receiving information from a student or another employee. The
Department has determined that it is simpler, easier to understand, and
more effective for employees to know what they must do or say under any
circumstance, rather than requiring them to alter their actions based
on the employee or student status of the person sharing the
information. This change also addresses commenters' objection to the
distinction in the July 2022 NPRM between students and
[[Page 33575]]
employees and their ability to self-advocate. See 87 FR 41438.
A recipient has discretion to further simplify the notification
requirement by requiring all employees to notify the Title IX
Coordinator when the employee has information about conduct that
reasonably may constitute sex discrimination under Title IX, or it can
follow the framework with two categories of employees and undergo a
straightforward set of inquiries to determine whether the employee is
in Category 1 and must report the information to the Title IX
Coordinator. If the employee has authority to institute corrective
measures on behalf of the recipient or has responsibility for
administrative leadership, teaching, or advising in the education
program or activity, then the employee is in Category 1.
As discussed in the July 2022 NPRM, requiring employees with the
authority to institute corrective measures to notify the Title IX
Coordinator when they have information about conduct that reasonably
may constitute sex discrimination under Title IX is generally
consistent with the definition of ``actual knowledge'' in Sec.
106.30(a) in the 2020 amendments. 87 FR 41438. However, it is not
sufficient to limit notification requirements to these individuals
because most students--and employees--are not in a position to know
whether a particular employee has the authority to institute corrective
measures. Likewise, students do not necessarily know which employees
are in administrative or leadership roles or which employees have
responsibilities under the Clery Act.
The other employees in Category 1 are responsible for providing
aid, benefits, or services to students, and therefore it is likely that
a student would view these employees as persons who would have the
authority to redress sex discrimination or 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).
87 FR 41438. The Department's position, as stated in the July 2022
NPRM, 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. 87 FR 41439.
The Department's view of which employees have responsibility for
administrative leadership, teaching, and advising remains the same as
the July 2022 NPRM. Id.
The Department acknowledges commenters' suggestions for other
notification frameworks, but the Department has determined that the
framework adopted in the final regulations best fulfills Title IX's
nondiscrimination mandate. A recipient's employees who have information
about conduct that reasonably may constitute sex discrimination under
Title IX are not permitted to ignore such conduct. And it is not
workable or appropriate for employees to make decisions about Title IX
reporting based on a student's age; such a requirement could introduce
unnecessary complexity. The Department no longer believes it is
appropriate to leave the determination of who must report to the Title
IX Coordinator to recipients--other than allowing a recipient to
determine whether Category 2 employees must report to the Title IX
Coordinator or may instead provide only the contact information of the
Title IX Coordinator--because an effective compliance program requires
that all employees know how to respond appropriately to information
about conduct that reasonably may constitute sex discrimination.
The Department declines to enumerate all of the job titles of
employees who are covered by sub-paragraph (c)(2). All non-confidential
employees have some duty under this provision, and it is up to the
recipient to reasonably determine based on the facts whether a
particular employee is in Category 1 or 2. Regarding employees who may
have fluctuating job duties and responsibilities such that they may
move between Category 1 and Category 2 and need updated training, as
discussed more fully in the section on training in Sec. 106.8(d), the
Department has revised Sec. 106.8(d) to clarify that training must
occur promptly when an employee changes positions that alters their
duties under Title IX or the final regulations and annually thereafter.
The Department continues to exempt confidential employees from the
notification requirements in Sec. 106.44(c)(2) and clarifies that
``confidential employee'' is defined in Sec. 106.2, and that the
reference to ``advising'' in Sec. 106.44(c)(2)(i) does not change the
definition of confidential employee. An advisor who meets the
definition of ``confidential employee'' would not have notification
requirements.
Changes: The Department has modified Sec. 106.44(c)(2) regarding
recipients that are not elementary schools or secondary schools to
state that such recipients must, at a minimum, require: Any employee
who is not a confidential employee and who either has authority to
institute corrective measures on behalf of the recipient or 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 conduct that
reasonably may constitute sex discrimination under Title IX or this
part. All other employees who are not confidential employees are
required to either: notify the Title IX Coordinator when the employee
has information about conduct that reasonably may constitute sex
discrimination under Title IX or this part; or provide the contact
information of the Title IX Coordinator and information about how to
make a complaint of sex discrimination to any person who provides the
employee with information about conduct that reasonably may constitute
sex discrimination under Title IX or this part.
Safety Threats
Comments: One commenter suggested that the Department modify the
proposed regulations to state that when any employee learns about
conduct that poses a safety threat to the disclosing individual or
others, the employee should immediately report the conduct to the Title
IX Coordinator, regardless of whether the disclosing individual wants
to report the conduct to the Title IX Coordinator.
Discussion: The Department acknowledges recipients' responsibility
to respond to safety threats on campus and reminds commenters that
employees' specific reporting obligations are governed by the
recipient's policies and, for postsecondary institutions only, the
Clery Act. For that reason, the Department declines in these
regulations to establish additional requirements pertaining to
reporting of safety threats. Nothing in these regulations precludes a
recipient from requiring all non-confidential employees to also
immediately report safety threats that relate to sex-based conduct to
the Title IX Coordinator. For additional discussion of safety threats,
see the section on the definition of ``confidential employee'' and the
requirements imposed upon such employees. The Department also notes
that there are other provisions of the final regulations that address
safety threats. See, e.g., Sec. Sec. 106.44(e), (f), and (h),
106.46(c).
Changes: None.
[[Page 33576]]
Study Abroad Programs
Comments: Some commenters expressed concern that students in study
abroad programs will not know the contact information of the Title IX
Coordinator, which could deter a complainant from exercising their
Title IX rights.
Discussion: As an initial matter, Sec. 106.8(c)(1)(i) requires
that the name or title, office address, email address, and telephone
number of the recipient's Title IX Coordinator must be included in the
recipient's notice of nondiscrimination. As stated in Sec. 106.11,
Title IX applies to every recipient and to all sex discrimination
occurring under a recipient's education program or activity in the
United States. A recipient has an obligation to address a sex-based
hostile environment under its education program or activity, even when
some conduct alleged to be contributing to the hostile environment
occurred outside the recipient's education program or activity or
outside the United States. Conduct occurring in a study abroad program
is not governed by these regulations. However, if a student returns to
the United States and conduct that occurred in a study abroad program
contributes to a hostile environment in the United States, that conduct
may be relevant and considered by the recipient so that it can address
the sex discrimination occurring within its program in the United
States. Nothing in these regulations precludes a recipient from
adopting procedures that address conduct that occurs outside of the
United States, but Title IX does not apply outside of the United
States. For additional discussion of study abroad programs, see the
section on Extraterritoriality under Sec. 106.11.
Changes: None.
Employment Discrimination
Comments: One commenter opposed proposed Sec. 106.44(c)(2)(iii)
because they believed that any discrimination an employee experiences
in the course of their employment should be governed by the employment
contract. The commenter asserted that the Equal Employment Opportunity
Commission and the recipient's human resources department have
jurisdiction over sex discrimination within a recipient's workplace,
and that neither Title IX nor the Department have jurisdiction over
such matters.
Discussion: Title IX states that ``no person in the United States''
shall be subject to sex discrimination under any education program
activity receiving Federal financial assistance. Since its enactment,
Title IX has been understood to cover employment discrimination. See N.
Haven Bd. of Educ., 456 U.S. at 520 (``Section 901(a)'s broad directive
that `no person' may be discriminated against on the basis of gender
appears, on its face, to include employees as well as students.''). The
Title IX regulations have also covered discrimination on the basis of
sex in employment since 1975. See 40 FR 24143-44 (subpart E). The
Department notes that the EEOC may also have jurisdiction over some
Title IX complaints filed with OCR. See OCR Case Processing Manual, at
26-27.
Changes: None.
Information About How To Make a Complaint
Comments: One commenter recommended that the Department delete
``and information about how to report sex discrimination'' from
proposed Sec. 106.44(c)(2)(iv)(B) because this information should come
from the Title IX Coordinator. The commenter argued that the Title IX
Coordinator is better equipped than an employee to discuss ``incident
specifics,'' provide information on supportive measures, explain a
recipient's grievance procedures, and assess safety considerations or
concerns.
Discussion: The Department declines to delete ``and information
about how to report sex discrimination'' from Sec. 106.44(c)(2)(ii)(B)
because that is an important part of the alternative option for
Category 2 employees, but has modified the text for clarity so that it
now reads ``how to make a complaint of'' sex discrimination, consistent
with the Department's intent. However, this requirement does not
require more than stating that the Title IX Coordinator will provide
information about the grievance procedures, supportive measures, and
how to make a complaint of sex discrimination. Category 2 employees are
not required by these regulations to explain a recipient's grievance
procedures or supportive measures. Indeed, in order to promote
consistency of information, the Title IX Coordinator is responsible for
providing this information as part of their obligations under Sec.
106.44(f)(1).
Changes: The Department has modified Sec. 106.44(c)(2)(ii)(B) to
state that one of the options for Category 2 employees is to provide
the contact information of the Title IX Coordinator and information
about how to make a complaint of sex discrimination to any person who
provides the employee with information about conduct that reasonably
may constitute sex discrimination under Title IX or this part.
Comments Related to Sec. 106.44(c)(3)
Comments: Some commenters urged the Department to provide
guidelines outlining proposed Sec. 106.44(c)'s application to student
employees, such as work-study participants.
Discussion: 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 reasonably determine whether
the requirements of Sec. 106.44(c)(2) would apply. Proposed Sec.
106.44(c)(3) set out two factors: whether the person's primary
relationship with the postsecondary institution is to receive an
education and whether the person learns of conduct that reasonably may
constitute sex discrimination under Title IX while the person is
performing employment-related work. However, after further considering
the issue, the Department is removing these factors in the final
regulations in recognition of the fact that a recipient may have
different bases upon which it reasonably determines a student-
employee's status. Because employment laws vary by State, recipient
discretion is appropriate in this context and a recipient should give
notice to its student-employees of the circumstances under which a
person who is both a student and an employee is subject to the
requirements of paragraph (c)(2). A recipient is free to consider the
factors that were provided in the proposed regulations, but it is not
required to do so and has the flexibility to consider those or other
factors when determining whether a person who is both a student and an
employee is subject to the requirements of Sec. 106.44(c)(2).
Changes: The Department has revised proposed Sec. 106.44(c)(3) to
state that a postsecondary institution must reasonably determine and
specify whether and under what circumstances a person who is both a
student and an employee is subject to the requirements of paragraph
(c)(2) of this section.
Comments Related to Sec. 106.44(c)(4)
Comments: Some commenters supported proposed Sec. 106.44(c)(4)
because it would emphasize complainant agency and recognize that a
recipient does not have notice if an employee complainant chooses not
to disclose sex discrimination they experienced. Other commenters urged
the Department to modify proposed Sec. 106.44(c)(4) to state that a
recipient does not have notice of or an obligation to respond to sex
discrimination if the only employee with actual knowledge of the
conduct is the respondent, which
[[Page 33577]]
would be consistent with the 2020 amendments at Sec. 106.30(a)
(definition of actual knowledge).
Discussion: The Department maintains that it would be inappropriate
to require an employee to notify the Title IX Coordinator of
information about conduct that reasonably may constitute sex
discrimination under Title IX when the only employee with the
information is the employee complainant. An employee's 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. 87 FR 41441. However, if the employee
complainant tells another employee, then the employee who receives the
information would have notification requirements under Sec.
106.44(c)(1) and (2). The Department is persuaded, after reviewing the
comments, that additional clarity is appropriate and has revised Sec.
106.44(c)(4) to clarify that the notification requirements in Sec.
106.44(c)(1) and (2) do not apply to an employee who has personally
been subject to conduct that reasonably may constitute sex
discrimination under Title IX or this part.
The Department declines to modify Sec. 106.44(c)(4) to state that
a recipient does not have notice of or an obligation to respond to sex
discrimination if the only employee with actual knowledge of the
conduct is the respondent for the reasons explained in the section on
Notice of Sex Discrimination above.
Changes: The Department has revised proposed Sec. 106.44(c)(4)
such that the final regulations state that ``the requirements of
paragraphs (c)(1) and (2) of this section do not apply to an employee
who has personally been subject to conduct that reasonably may
constitute sex discrimination under Title IX or this part.''
4. Sections 106.2 and 106.44(d) ``Confidential Employee'' Requirements
and Definition
Sections 106.2 and 106.44(d) Definition of ``Confidential Employee''
and General Requirements
Comments: A number of commenters expressed general support for the
definition of ``confidential employee'' at Sec. 106.2 and for the
requirements related to confidential employees at Sec. 106.44(d).
Commenters noted that confidential employees or confidential resources
help complainants in various ways, including safety planning,
explaining the complainants' rights and legal options, helping
complainants regain a sense of control over next steps, and providing
referrals to on- and off-campus resources.\34\
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\34\ Please note that certain commenters referred to
``confidential resources'' rather than ``confidential employees,''
and some of these commenters explained they used the former term to
encompass non-employees. This discussion uses the term
``confidential resource'' when describing comments that use this
term. However, as explained below, the term ``confidential
employee'' in the final regulations only covers employees of a
recipient.
---------------------------------------------------------------------------
Several commenters stressed the importance of services provided by
community-based organizations like rape crisis centers. Some commenters
asked the Department to explain any distinction between ``confidential
employee'' as defined in proposed Sec. 106.2 and the term
``confidential resource'' in proposed Sec. 106.45(b)(5). Other
commenters urged the Department to designate specific types of
individuals as confidential employees, such as teachers, victim
advocates, or employees of offices providing mental health services or
resources for minority groups.
One commenter raised concerns that having different
responsibilities for confidential and non-confidential employees would
result in inadvertent failures to address incidents.
Some commenters asked the Department to make multiple confidential
resources available to students, to require recipients to collaborate
or contract with community-based organizations, or to inform students
about such organizations. Some commenters asked for clarification
regarding how the regulations related to confidential employees
interact with VAWA 2013 and VAWA 2022, the Clery Act, Title VII, and
other State and Federal laws. Other commenters asked the Department to
modify the definition of ``confidential employee'' in proposed Sec.
106.2 or to otherwise make clear that postsecondary institutions are
not permitted to designate non-employees as mandatory reporters or
campus security authorities.
Another commenter asked the Department to confirm that confidential
employees are subject to proposed Sec. 106.40(b)(2)'s requirements to,
upon receiving a disclosure about a student's pregnancy, provide
certain information to the individual making the disclosure.
Discussion: The Department acknowledges commenters' support for
Sec. 106.2, which defines ``confidential employee'' and Sec.
106.44(d), which specifies the requirements for these employees.
Section 106.44(d) makes clear that a confidential employee is not
required to notify the Title IX Coordinator when a person informs them
of conduct that reasonably may constitute sex discrimination under
Title IX or this part. Instead, Sec. 106.44(d) requires a recipient to
notify all participants in the recipient's education program or
activity of how to contact its confidential employees, if any, subject
to a limited exclusion discussed below. In addition, the final
regulations mandate that a recipient require a confidential employee,
in response to a person who informs that employee of conduct that
reasonably may constitute sex discrimination under Title IX, to:
explain the employee's status as confidential for purposes of Title IX
and the Title IX regulations, including the circumstances in which the
employee is not required to notify the Title IX Coordinator about
conduct that reasonably may constitute sex discrimination (e.g., when
the person is providing confidential services and not in circumstances
when the employee is performing another role, such as teaching or
coaching, see 87 FR 41441-42); provide that person with contact
information for the Title IX Coordinator; explain how to make a
complaint of sex discrimination; and explain that the Title IX
Coordinator may be able to offer and coordinate supportive measures as
well as initiate an informal resolution process or an investigation
under the grievance procedures.
As discussed in the July 2022 NPRM, OCR received information
through listening sessions and the June 2021 Title IX Public Hearing
that stressed the importance of access to confidential employees for
persons who have been subjected to sex-based harassment, including
sexual violence. See 87 FR 41441. The comments in support of the
proposed confidential employee provisions underscore the importance of
a confidential reporting mechanism to allow students to learn about how
to obtain supportive measures without disclosing their identity to
their alleged harasser or initiating a Title IX investigation. In
addition, requiring confidential employees to share information about
how to contact the recipient's Title IX Coordinator and make a
complaint of sex discrimination assists the recipient in its ability to
respond to sex discrimination in its education program or activity.
Ensuring that some employees are able to receive confidential reports
of sex discrimination is a longstanding priority for the Department and
is consistent with the practices of many recipients both before and
since the 2020 amendments. See, e.g., 2001 Revised Sexual Harassment
Guidance, at 17-18;
[[Page 33578]]
2014 Q&A on Sexual Violence, at 18-23; 85 FR 30039-40. The Department
disagrees that the use of confidential employees will lead to an
inadvertent failure to address incidents, and commenters did not offer
persuasive evidence in support of that assertion. Rather, the
Department agrees with those commenters who expressed that confidential
employees allow individuals to feel more comfortable seeking the
support they need and ultimately make the recipient aware of incidents
that may otherwise have gone unreported.
The Department appreciates the opportunity to clarify that, for
purposes of these Title IX regulations, a confidential employee refers
to an employee of the recipient. The Department understands that non-
employees, such as individuals who provide services in community-based
organizations, may serve as valuable confidential resources, providing
confidential support for students and employees. Confidential resources
include those who provide privileged and confidential support, such as
physicians and clergy, regardless of whether they are employed by a
recipient. Confidential resources also include individuals who are
employed by a recipient and meet the definition of ``confidential
employee'' in Sec. 106.2, including those 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 Department nonetheless declines to expand the
confidential employee provisions to cover non-employees. Section
106.44(d)(2) requires a recipient to ensure that any confidential
employees provide certain disclosures to individuals who inform them of
conduct that reasonably may constitute sex discrimination under Title
IX, and a recipient may not be able to require non-employees to comply
with these requirements. Importantly, Sec. 106.44(c) does not require
a recipient to impose any reporting requirements on non-employees, and
there is accordingly no need to designate certain non-employees as
exempt from Title IX's reporting requirements.
Confidential employees remain subject to Sec. 106.40(b)(2)'s
requirement to provide information to a student, or a person who has a
legal right to act on behalf of the student, when the student or person
with a legal right informs the employee of the student's pregnancy or
related conditions. This obligation does not apply when the
confidential employee--as with other employees--reasonably believes the
Title IX Coordinator has already been notified.
The Department declines to require a recipient to make multiple
confidential employees available to students or to collaborate or enter
into memoranda of understanding with specific entities that may provide
confidential services, such as community-based rape crisis centers, as
requested by some commenters. While such organizations can provide
important resources, recipients are in the best position to determine
whether such collaborations would be helpful in their unique
circumstances.
In response to an inquiry about how the regulations regarding
confidential employees relate to other Federal and State laws, as
explained in the July 2022 NPRM, the confidential employee reporting
exceptions in Sec. 106.44(d) are limited to Title IX and do not exempt
a recipient's confidential employees from complying with any
obligations under Federal, State, or local law to report sex
discrimination, including sex-based harassment. See 87 FR 41442. While
Sec. 106.44(j) generally prohibits disclosures of personally
identifiable information obtained in the course of complying with this
part, such disclosures are permissible if required by Federal law or
regulations. Additionally, if a State or local law obligates a
confidential employee to report sex discrimination, that disclosure is
permitted by Sec. 106.44(j) as long as it does not otherwise conflict
with Title IX or this part. A disclosure pursuant to a State law
requiring confidential employees to report sexual assault of a child,
for example, is not prohibited by Sec. 106.44(j) or by any other
provision of these regulations. In addition, Sec. 106.6(f), to which
the Department did not propose making any changes, makes clear that the
requirements in the Title IX regulations do not alleviate a recipient's
obligations to its employees under Title VII. See id. The Department
declines to modify Sec. 106.44(d) to address disclosure
responsibilities under the Clery Act or to opine on whether a
postsecondary institution can designate non-employees as campus
security authorities under the Clery Act because these final
regulations relate to requirements of Title IX, not the Clery Act.
Consistent with the Department's position in the preamble to the 2020
amendments, these final regulations do not alter requirements under the
Clery Act or its implementing regulations. See 85 FR 30384; 87 FR
41442. The requirements related to confidential employees under these
regulations do not pose any inherent conflict with the Clery Act
regulations defining a campus security authority to include, among
other things, an individual identified in an institution's statement of
campus security policy as an individual or organization to which
students and employees should report criminal offenses. 34 CFR
668.46(a).
The confidential employee requirements in these final regulations
appropriately balance the need for recipients to learn about and
promptly take action in response to sex discrimination, including
discrimination that may pose a threat to safety, and the importance of
ensuring that individuals can access confidential services without
prompting a report to the Title IX Coordinator. Therefore, the
Department declines to require confidential employees to immediately
report conduct that poses a safety threat. The Department notes that in
all circumstances, a confidential employee is required to explain to
the individual disclosing the sex discrimination how to contact the
Title IX Coordinator and how to make a complaint of sex discrimination
and to explain that the Title IX Coordinator may be able to offer and
coordinate supportive measures, as well as initiate an informal
resolution process or an investigation under the grievance procedures.
In addition, if a Federal, State, or local law requires a confidential
employee to report conduct that poses a threat to the safety of the
disclosing individual or others, the confidential employee generally
may do so in accordance with Sec. 106.44(j). As explained above, while
Sec. 106.44(j) generally prohibits disclosure of personally
identifiable information obtained in the course of complying with this
part, such disclosures are permissible if required by Federal law or
regulations, or if the disclosures do not otherwise conflict with Title
IX or this part and are either required by State law or permitted by
FERPA. The Department notes that under Sec. 106.44(d), the
confidential employee would be required to explain the employee's
status as confidential for purposes of the Title IX regulations--and,
implicitly, the purposes for which the employee's status is not
confidential, including due to reporting obligations under other
Federal, State, or local laws--to any person who informs the
confidential employee of conduct that reasonably may constitute sex
discrimination. In addition, nothing in the final regulations prohibits
a recipient from also requiring a confidential employee to explain the
circumstances under which other Federal, State, or local laws require
the employee to notify individuals other than the Title IX Coordinator
of conduct
[[Page 33579]]
that reasonably may constitute sex discrimination.
The Department notes that Sec. 106.45(b)(5) addresses a
recipient's obligation to take reasonable steps to protect privacy, as
long as such steps do not restrict a party's ability to, among other
things, consult with ``confidential resources.'' The Department
clarifies that the reference to ``confidential resources'' in Sec.
106.45(b)(5) is not synonymous with ``confidential employee,'' as
defined in Sec. 106.2, although certain individuals may qualify as
both. Unlike a confidential employee, a confidential resource does not
need to be an employee of the recipient or fall under one of the three
categories of confidential employees set out in Sec. 106.2. A
confidential resource who is not a confidential employee also does not
need to comply with the notification requirements in Sec.
106.44(d)(2).
The Department declines to designate specific types of individuals
as confidential employees in the regulations, as requested by
commenters, because such a categorical designation does not provide the
necessary flexibility and discretion to account for variations among
recipients with regard to specific individuals' assigned duties, which
could lead to inaccurate designations under the facts specific to a
particular employee. However, the Department notes that several of the
examples raised by commenters are likely to be confidential employees.
For example, a victim advocate could fall under either the first or
second category of the definition of ``confidential employee'' in final
Sec. 106.2. We further discuss the three categories of confidential
employees below.
Changes: Changes to the definition of ``confidential employee'' and
to Sec. 106.44(d) are discussed below.
Section 106.2 First Category of ``Confidential Employee''--Employee
Whose Communications Are Privileged Under Federal or State Law
Comments: One commenter urged the Department to modify the first
category of the proposed definition of ``confidential employee'' in
Sec. 106.2 by revising the reference to communications that are
``privileged'' under Federal or State law to instead refer to
communications that are ``privileged or confidential'' under Federal or
State law. The commenter explained this revision would encompass
employees who are covered by confidentiality provisions from State,
territorial or Tribal constitutions, or statutes that do not rise to
the level of a formal legal privilege. Another commenter suggested
aligning the definition with the Clery Act (regarding professional or
pastoral counselors).\35\
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\35\ The commenter cited U.S. Dep't of Educ., Office of
Postsecondary Education, The Handbook for Campus Safety and Security
Reporting, at 4-7 (2016).
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Some commenters raised concerns that certain confidential employees
may be required by law to disclose certain communications they receive.
For example, one commenter noted that school psychologists are required
by mandatory reporting laws to disclose certain types of sexual
misconduct involving minors. Some commenters asked the Department to
clarify in the regulatory text that confidential employees are not
exempt from compliance with mandatory reporting obligations.
Discussion: The Department acknowledges the suggestions from
commenters regarding revisions to the first category in the definition
of ``confidential employee'' as proposed in Sec. 106.2. The Department
agrees that modifying this category to refer to an employee whose
communications are ``privileged or confidential'' aligns with the
Department's rationale for protecting communications with confidential
employees as described in the July 2022 NPRM, 87 FR 41441-42, and
appropriately encompasses employees whose communications are
confidential under law even if they do not fall within a specific legal
privilege.
The Department further agrees with commenters' suggestions to
clarify the scope of the confidential employee's status as confidential
under the first category by using an approach similar to that of the
Clery Act. Accordingly, the Department has revised the first category
in the definition of ``confidential employee'' to state that an
employee's confidential status for purposes of the Title IX regulations
is only with respect to information the employee receives while
functioning within the scope of their duties to which privilege or
confidentiality applies.
The Department acknowledges commenters' concerns that some
individuals who are confidential employees for purposes of Title IX may
nonetheless be required to disclose certain information by law, such as
by mandated reporting laws that apply in the elementary school and
secondary school context. To address potential confusion on this point,
the Department has revised the language in the first category to
clarify that the definition identifies employees who are confidential
employees ``for purposes this part,'' and that the employee's
confidential status is ``only with respect to information received
while the employee is functioning within the scope of their duties to
which privilege or confidentiality applies.'' These revisions
sufficiently clarify that communications are only confidential for
purposes of these Title IX regulations to the extent the employee is
functioning within the scope of their duties to which privilege or
confidentiality applies, and, more generally, that communications with
such employees may not be confidential for all purposes. Confidential
status of an employee means that the employee need not report conduct
that reasonably may constitute sex discrimination to a recipient's
Title IX Coordinator, and a recipient is not considered to have
knowledge of conduct that reasonably may constitute sex discrimination
if the only employee who knows about such conduct is a confidential
employee. Other laws, however, may require that information about
conduct that reasonably may constitute sex discrimination be disclosed
to persons other than a Title IX Coordinator, such as to law
enforcement agencies in certain cases. The fact that an employee is
``confidential'' for purposes of ``this part'' does not foreclose a
confidential employee from disclosing the information in question for
other purposes if required to do so by, for example, State law, if such
a disclosure is permitted by Sec. 106.44(j). As discussed above, if
State law requires a disclosure, such as mandated reporting laws
regarding sexual assault of children, the disclosure is permissible
under Title IX unless it would otherwise conflict with Title IX or this
part. For more information about the circumstances in which disclosures
of personally identifiable information obtained in the course of
complying with this part are permissible, see the discussion in Sec.
106.44(j).
The Department has also removed the reference to an employee's
``role'' in the first and second categories of the definition of
confidential employee. The Department views the reference to the
employee's ``duties'' as sufficient, rendering a reference to the
employee's ``role or duties'' as unnecessary.
Changes: The Department has expanded the first category within the
definition of ``confidential employee'' at Sec. 106.2 to use the
phrase ``privileged or confidential'' in place of the phrase
``privileged.'' In addition, the Department has revised the first
category to clarify when information provided to a confidential
employee is
[[Page 33580]]
confidential by replacing the phrase ``associated with their role or
duties for the institution'' with a sentence stating that ``[t]he
employee's confidential status, for purposes of this part,'' applies
only to information received while that employee ``is functioning
within the scope of their duties to which privilege or confidentiality
applies.'' The Department also has removed the reference to the
employee's ``role'' as unnecessary, given the reference to the
employee's duties.
Section 106.2 Second Category of ``Confidential Employee''--Employee
Designated To Provide Services Related to Sex Discrimination
Comments: One commenter urged the Department to revise the second
category of confidential employees to refer to an employee of a
recipient whom the recipient has designated as a confidential resource
``while'' providing services to persons in connection with sex
discrimination. The commenter asked the Department to remove the
language that 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. The commenter suggested moving this
language to Sec. 106.44(d)(2) to place the burden on the recipient to
make sure that designated confidential employees act in accordance with
their designations.
One commenter asked the Department to clarify who falls within the
second category and whether there is a limit on the number of employees
that a recipient can designate as confidential.
Another commenter recommended adding language to the second
category to note that, at the K-12 level, confidential employees in
this category are likely to qualify as mandated reporters for suspected
child abuse and neglect and have associated reporting obligations.
Discussion: The Department views the second category of the
definition as sufficiently conveying that if an employee is designated
as confidential for the purpose of providing services to persons in
connection with sex discrimination and that employee also has duties
unrelated to providing those services, the employee's confidential
status only applies to information received in connection with the
employee providing services to persons related to sex discrimination.
The Department therefore has concluded that it is unnecessary to
replace ``for the purpose of providing services'' with ``while
providing services'' when defining employees covered by the second
category of confidential employees. The Department disagrees that the
language qualifying the employee's status as a confidential employee is
better suited for Sec. 106.44(d)(2); rather, retaining this limitation
as part of the definition of ``confidential employee'' at Sec. 106.2
will avoid unnecessary confusion.
The employees who qualify as a ``confidential employee'' under the
second category will vary by recipient and based on the employee's
assigned duties. These confidential employees may include, but are not
limited to, guidance counselors, organizational ombuds, or staff within
an on-campus sexual assault response center. The Department also
confirms that these final regulations do not impose any limit on the
number of employees a recipient can designate as confidential.
The Department recognizes that some individuals who are
confidential employees as defined in proposed Sec. 106.2 may
nonetheless be required to disclose certain information by law, such as
mandatory reporting laws applying to the elementary school and
secondary school context. In addition to the revisions to the first
category to address this concern, described above, the Department has
added ``under this part'' to the definition in the second category to
emphasize that employees who are designated as confidential by the
recipient are so designated for purposes of the Title IX regulations
and may not be considered confidential for purposes of other laws.
As noted in the discussion of comments on the proposed definition
of ``confidential employee'' generally, some commenters asked the
Department to clarify the distinction between ``confidential employee''
as defined by Sec. 106.2 and ``confidential resources'' as used in
Sec. 106.45(b)(5). The Department notes that the second category of
the proposed definition of ``confidential employee'' referred to an
employee designated by the recipient as a ``confidential resource.''
The Department acknowledges that the use of the phrase ``confidential
resource'' within the definition of ``confidential employee'' may have
caused confusion, and that the two unrelated uses of the phrase
``confidential resource'' within the Title IX regulations may have
caused further confusion. To enhance clarity and minimize the risk of
confusion, the Department has made a non-substantive revision to use
the phrase ``designated as confidential'' rather than ``designated as a
confidential resource'' and thereby remove the reference to a
confidential resource. The Department has also made other non-
substantive revisions to reduce superfluous language, adopt clearer
language, and use consistent phrasing throughout the second category of
the definition of confidential employee. See discussion of Sec.
106.45(b)(5) for further explanation of a confidential resource.
Changes: In the second category of the definition of a
``confidential employee,'' the Department has replaced the phrase
``designated as a confidential resource'' with the phrase ``designated
as confidential.'' The Department has also added ``under this part'' to
clarify the applicability of the employee's confidential status. The
Department has also made the following non-substantive revisions:
replacing the phrase ``in connection with'' with the phrase ``related
to''; replacing the phrase ``role or duty'' with ``duty''; replacing
the word ``these'' with the word ``those''; replacing the phrase
``limited to'' with ``only with respect to''; and replacing ``status as
confidential'' with ``confidential status.''
Section 106.2 Third Category of ``Confidential Employee''--Employee of
a Postsecondary Institution Conducting an Institutional Review Board-
Approved Research Study
Comments: Some commenters asked the Department to confirm that the
third category covers an employee of a postsecondary institution who is
conducting a human-subjects research study designed to gather
information about sex discrimination that is approved by the
Institutional Review Board (IRB) of another postsecondary institution
(i.e., not the institution that employs the individual who is
conducting the study).
Some commenters urged the Department to expand the third category
to cover employees of research institutions that conduct IRB-approved
research through a contract with a recipient, to cover any individual
or entity (i.e., not limited to employees of postsecondary
institutions) that conducts IRB-approved research, or to cover an
employee of a postsecondary institution who is conducting research
studies that are exempt from the requirement for IRB approval, such as
an employee who conducts sexual harassment climate surveys.
One commenter urged the Department to remove the third category of
confidential employees because IRB employees require consent from study
participants and share information with recipients.
Discussion: The Department appreciates the opportunity to clarify
[[Page 33581]]
that the third category of the definition of ``confidential employee''
includes researchers who are employed by one recipient and are
conducting research studies that were approved by another recipient's
IRB.
The Department acknowledges the suggestion to expand the third
category of the definition of ``confidential employee'' to include
employees of research institutions that are not affiliated with a
recipient but that are collecting IRB-approved research as part of a
partnership or contract with a recipient. However, the obligations
under Title IX are limited to a recipient and would not cover research
institutions that are not affiliated with a recipient. Thus, as noted
in the section discussing the definition of ``confidential employee''
generally, the Department declines to expand the confidential employee
provisions to cover non-employees generally, or to cover employees of
research institutions that are not affiliated with a recipient. Section
106.44(c) does not require a recipient to impose any reporting
requirements on non-employees (unless the Title IX Coordinator has
delegated some of the Title IX Coordinator's obligations to a non-
employee), and so there is no need to exempt non-employees who conduct
IRB studies from Title IX's reporting requirements.
The Department recognizes that valuable information can be obtained
through climate surveys and similar research and that some students may
be reluctant to participate in such surveys or research if they fear
the information they share could be disclosed. The Department also
recognizes that designating the employees who conduct these surveys as
confidential could significantly impede the recipient's ability to
learn about and take appropriate actions to address concerns raised in
the climate survey or similar study. In the July 2022 NPRM, the
Department identified climate surveys as an example of a strategy a
recipient could use to monitor for barriers to reporting sex
discrimination. See 87 FR 41436. The Department notes that a recipient
may take steps to protect the privacy of information shared on climate
surveys, such as by making the surveys anonymous with an option for
students completing the survey to disclose their names. For these
reasons, the Department declines to expand the third category to
include employees who conduct climate surveys.
The Department also declines to remove the third category in the
definition of ``confidential employee'' as one commenter suggested. The
fact that studies require participants to consent or the fact that
certain information from studies may be shared with the recipient does
not obviate the need to exempt employees who are conducting IRB-
approved human subjects research studies related to sex discrimination
from the notification requirements of Sec. 106.44(c). Neither an
individual's consent to participate in a study nor the agreement of the
employees conducting the study to share information with the recipient
will necessarily encompass the sharing of information or conduct
involving specific individuals with a Title IX Coordinator, so
protections for such individuals are still necessary even in these
circumstances.
Finally, the Department has made a minor revision to the third
category of the definition of ``confidential employee'' to use
consistent phrasing throughout the three-part definition of
``confidential employee.''
Changes: The Department has revised the third category of the
definition of a ``confidential employee'' to replace the phrase
``limited to'' with ``only with respect to.''
Section 106.44(d)(1) Recipient's Requirement To Identify Any
Confidential Employees
Comments: A number of commenters supported proposed Sec.
106.44(d)(1)'s requirement that a recipient inform participants of the
identity of any confidential employee. However, these commenters urged
the Department to strengthen the provision by requiring a recipient to
designate at least one confidential employee, rather than merely
allowing a recipient to do so, because they believe some institutions
will not do so unless required.
Relatedly, several commenters stated that lack of access to
confidential resources can chill reporting and asserted that access to
confidential resources is necessary for effectuating Title IX. In
addition, some commenters asked the Department to require recipients to
increase the hiring of confidential employees or expand confidential
services.
Some commenters asked the Department to encourage or require
recipients to designate a diverse group of employees to serve as
confidential employees to try to address barriers to accessing
confidential resources for diverse students, including students of
color, students with a disability, LGBTQI+ students, and pregnant
students. Some commenters urged the Department to require recipients to
designate at least one confidential employee with specific training and
skills, such as trauma-informed training.
Other commenters raised concerns about the applicability of
confidential employee requirements to an elementary school or secondary
school, including one commenter who suggested that elementary schools
and secondary schools have discretion to decide whether they have
sufficient resources to designate, train, and oversee confidential
employees.
Some commenters asked the Department to specify in proposed Sec.
106.44(d)(1) how a recipient must provide notice of the identity of any
confidential employee. Some commenters urged the Department to require
a recipient to publish the identities of the confidential employees who
fall within the first and second categories of the definition through a
general notice in a recipient's Title IX policy or catalog. Other
commenters viewed providing a list of employees in the first category
as unreasonably burdensome for a school district. Commenters also
suggested alternatives for how to identify confidential employees that
would avoid the need to update this information with every job change.
Other commenters urged the Department to modify proposed Sec.
106.44(d)(1) to require a recipient to notify participants of the
confidential employees who are in the best position to help those
experiencing sex discrimination (e.g., employees in a postsecondary
institution's counseling center). These commenters argued that the
requirement to provide notice of all confidential employees poses an
unnecessary burden, is not tailored to meet the participants' needs,
and could lead to confusion. The commenters added that it might not be
appropriate to direct complainants to some employees who qualify as
confidential resources under State law, such as an athletic trainer
whose privilege might only apply when treating patients and not to
disclosures by non-patients.
Some commenters suggested that the Department remove the
requirement that postsecondary institutions notify all participants of
the identities of all researchers conducting studies on sex
discrimination who are considered confidential employees because giving
such notice would be difficult due to the dynamic nature of research
teams and studies, which change over time.
Discussion: The Department agrees with the commenters who noted the
many important benefits of making confidential employees available to
complainants, particularly confidential employees who can support
diverse student populations. The Department also agrees with commenters
that
[[Page 33582]]
making a diverse group of confidential employees available may help to
address barriers to accessing confidential employees.
However, the Department declines to require recipients to designate
confidential employees. The Department recognizes that some
recipients--particularly smaller schools, elementary schools, and
secondary schools--may not have an employee who meets Sec. 106.2's
definition of ``confidential employee'' under the first or third
category of that definition and that requiring such recipients to
designate one or more confidential employees under the second category
of that definition could be unduly burdensome or infeasible for reasons
specific to that recipient. These regulations require a recipient,
including an elementary school or secondary school recipient, to treat
any employees who fall within the first or third categories of the
definition of ``confidential employee'' as confidential employees for
purposes of Title IX.
At the same time, the Department emphasizes that nothing in these
final regulations prevents a recipient from providing information about
off-campus sources of support.
The Department acknowledges commenters' suggestion to require
recipients to train confidential employees on certain topics. However,
the Department declines to add additional training topics beyond the
requirements of Sec. 106.8(d), leaving flexibility and discretion to
recipients to determine how to meet training requirements in a manner
that best fits the recipient's unique educational community. The
training topics required under Sec. 106.8(d)(1) are sufficient for
confidential employees to fulfill their obligations. The Department
declines to require specific trauma-informed practices because the
final regulations already include provisions that prevent reliance on
stereotypes and otherwise incorporate some of the important underlying
principles of trauma-informed care. In addition, it is important to
provide flexibility to recipients to choose how to meet the training
requirements under Sec. 106.8(d)(1) in a way that best serves the
needs, and reflects the values, of a recipient's community.
In response to concerns and confusion related to notifying
participants of the identity of any confidential employee, the
Department has revised proposed Sec. 106.44(d)(1) to instead require a
recipient to notify participants of how to contact its confidential
employees, if the recipient has any. This change gives the recipient
the flexibility and discretion to decide what information to provide
(e.g., whether to identify a confidential employee by name, title,
office, or phone number), while still ensuring that the recipient
provides sufficient information for participants to be able to contact
the confidential employees.
In addition, the Department has revised proposed Sec. 106.44(d)(1)
to clarify that a recipient does not need to notify participants of any
confidential employees who fall within the third category of the
definition of ``confidential employee''--that is, any employee whose
confidential status is only with respect to their conducting an IRB-
approved human-subjects research study designed to gather information
about sex discrimination. The Department agrees with commenters that
the confidential status of such employees may change over time due to
the dynamic nature of academic research; thus, requiring a recipient to
notify participants of this category of confidential employee could
create confusion. The Department also notes that the limited scope of
these researchers' confidential status makes it unlikely that students
would be able to seek them out to make confidential disclosures, and
that students who are participating in the IRB-approved research
studies may receive information about the treatment of their
disclosures as part of the informed consent process.
The Department acknowledges the suggestions from commenters to
specify how a recipient should notify participants in its education
program or activity about any confidential employees. The Department
declines, however, to prescribe a method for notifying participants
about confidential employees, as a particular method may be
inapplicable, unsuitable, or unduly burdensome for a specific
recipient, depending on the circumstances.
The Department declines the suggestion of some commenters to
require a recipient to notify participants in its education program or
activity of only those confidential employees who are in the best
position to help those experiencing sex discrimination. Identifying all
employees who fall within the first and second categories in the
definition of ``confidential employee'' in Sec. 106.2 will be less
burdensome for recipients and less confusing to students than it would
be for recipients to attempt to delineate between their confidential
employees. The Department is also concerned that adopting this
limitation would require subjective determinations about which
confidential employees are best positioned to provide assistance and
that this limitation could also disincentivize employees who qualify as
confidential but are not identified as such from fulfilling their
responsibilities under Title IX. Additionally, the commenters' concern
regarding the inapplicability of certain employees' confidential status
is clarified by the revisions that the Department has made to the first
category of the definition of ``confidential employee'' in Sec. 106.2.
Those revisions are discussed above. The Department also declines to
require a recipient to identify confidential employees as complainant-
or respondent-supporting, as certain confidential employees may support
both complainants and respondents. The Department notes that nothing
prohibits a recipient from providing additional information about
confidential employees.
Changes: The Department has replaced the requirement in Sec.
106.44(d)(1) for a recipient to notify all participants in the
recipient's education program or activity of the identity of any
confidential employee with the requirement to notify all participants
about how to contact the recipient's confidential employees, if any,
with the exclusion of any employee whose confidential status is only
with respect to their conducting an IRB-approved human-subjects
research study that is designed to gather information about sex
discrimination.
Section 106.44(d)(2) Requirements of Confidential Employees
Comments: Some commenters asked the Department to require a
recipient to provide additional information to participants regarding
exceptions to an employee's confidential status, such as State
mandatory reporting laws, and to proactively inform students and
employees about the distinction between legal privilege and
confidentiality. Other commenters suggested that students receive
information in writing about what types of information would be kept
confidential. Some commenters opposed proposed Sec. 106.44(d)(2) based
on their belief that it would be unenforceable because a recipient
would have no way of knowing when a confidential employee received
information about sex discrimination.
In contrast, other commenters urged the Department to require
confidential employees who learn about possible sex discrimination to
provide information to the individual about how to report the conduct
and how the Title IX Coordinator can help. One commenter stated that
some students recommended
[[Page 33583]]
requiring confidential employees to give students the option of whether
to keep the disclosure confidential or to have the confidential
employee report it to the Title IX Coordinator, viewing this as a
middle ground approach that would allow for greater trust of
confidential employees and encourage more reporting.
Other commenters asked the Department to require researchers with
confidential employee status to provide the Title IX Coordinator's
contact information and information about how to make a report to all
research study subjects during the studies' informed consent process or
in another way if informed consent is not required.
Some commenters provided suggestions related to confidential
employees in elementary schools and secondary schools, such as
requiring confidential employees to assist students with reporting or
requiring confidential employees to disclose information connected to
sex discrimination involving a minor child to that child's parent or
guardian immediately, unless disclosure to the parent or guardian is
prohibited by State or Federal law.
Some commenters urged the Department to amend proposed Sec.
106.44(d) and (g) to require, or at minimum permit, a recipient to
involve confidential employees and confidential resources when offering
and coordinating supportive measures.
One commenter expressed concern about the lengthy list of
information that an employee must provide in response to a disclosure
of sex discrimination. The commenter recommended that employees simply
be required to report the alleged conduct to the Title IX Coordinator,
which the commenter viewed as involving less employee training,
management, and oversight.
Discussion: The Department appreciates the opportunity to reiterate
that nothing in Sec. 106.2's definition of ``confidential employee''
or Sec. 106.44(d) exempts 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. As discussed above and in the discussion of Sec.
106.44(j), disclosures of personally identifiable information obtained
in the course of complying with this part are generally prohibited, but
there are exceptions for limited circumstances, including when required
by Federal law and, if not otherwise in conflict with Title IX or this
part, when required by State or local law or permitted by FERPA. The
Department acknowledges commenters' concerns that some individuals who
are confidential employees may be required to disclose certain
information by law, and that some students may be unaware of this fact.
The Department declines to incorporate mandated reporting requirements
into the regulatory text because they vary by State and by type of
recipient; however, the Department has revised proposed Sec.
106.44(d)(2) to require a confidential employee to explain their status
as confidential for purposes this part. For a confidential employee to
do so effectively, it would be appropriate for the employee to explain
the purposes for which their status is not confidential, including when
they may have reporting obligations under applicable Federal, State, or
local mandatory reporting laws. The revised language in Sec.
106.44(d)(2)(i) also specifically requires a confidential employee to
explain to anyone who informs them of conduct that reasonably may
constitute sex discrimination the circumstances in which the employee
is not required to notify the Title IX Coordinator about such conduct.
These clarifications will help students better understand whether the
employee will be able to keep a disclosure confidential, will enable
the disclosing individual to make an informed decision about whether
and what to disclose to the confidential employee, and will facilitate
a trusting relationship. The Department disagrees with the views
expressed by one commenter that the requirements in Sec. 106.44(d)(2)
are too onerous and thus that all employees should be required to
report conduct to the Title IX Coordinator.
The Department further understands commenters' desire that the
Department require a recipient to proactively notify students and
employees, including confidential employees, about the implications of
differences between legal privilege and confidentiality, and require
confidential employees to similarly advise students. The Department has
revised Sec. 106.44(d)(2) to require the confidential employee to
explain the circumstances in which the confidential employee is not
required to notify the Title IX Coordinator about conduct that
reasonably may constitute sex discrimination. This change adequately
addresses the commenters' concerns, without implementing regulations
that are unduly prescriptive or potentially ill-suited to the
circumstances of a particular confidential employee.
The Department disagrees with the assertion of some commenters that
a recipient cannot enforce Sec. 106.44(d)(2) and maintains that a
recipient can manage compliance with Sec. 106.44(d)(2) through
training and supervision of confidential employees. The Department
notes that Sec. 106.8(d)(1) requires all employees to 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 under these regulations (including the definition of
``sex-based harassment''), and all applicable notification and
information requirements under Sec. Sec. 106.40(b)(2) and 106.44,
which includes the requirements of Sec. 106.44(d)(2). As explained in
the July 2022 NPRM, the training requirements for a recipient's
employees cover both confidential and non-confidential employees. See
87 FR 41429. In addition, nothing in the final regulations precludes a
recipient from requiring a confidential employee to verify the
employee's compliance with the requirements of Sec. 106.44(d)(2) in a
manner that does not require disclosure to the recipient of details
that are confidential. For example, a recipient could request that
confidential employees self-attest that they provided the required
information upon being informed of conduct that reasonably may
constitute sex discrimination. The Department also acknowledges one
commenter's concern that a confidential employee's failure to comply
with Sec. 106.44(d)(2) could result in OCR complaints or litigation
for the recipient. However, the Department notes that the recipient
could face the same consequences if it fails to address sex
discrimination in its education program or activity, and that the
requirements in Sec. 106.44(d)(2) may help the recipient learn of sex
discrimination it needs to address because, as noted in the July 2022
NPRM, making confidential employees available may also result in more
individuals feeling comfortable to seek the support they need and
ultimately find the confidence to make the recipient aware of incidents
that may otherwise have gone unreported. See 87 FR 41441.
The Department disagrees with a commenter's concern that the list
of information a confidential employee must provide is too lengthy. The
Department both disagrees with the characterization of the required
information as lengthy and separately maintains that the important
benefits of providing this information justify any burden on
confidential employees. The alternative option suggested by the
commenter--requiring employees to report alleged conduct to the Title
IX Coordinator--would eliminate
[[Page 33584]]
individuals' ability to make confidential reports of sex
discrimination.
The Department declines to adopt a commenter's suggestion to give
students the option of whether to have a confidential employee keep a
disclosure confidential or have that employee report it to the Title IX
Coordinator. The Department is concerned that this approach could
create confusion among students and employees as to whether and when a
confidential employee has received appropriate consent to report to the
Title IX Coordinator. The Department notes that final Sec.
106.44(d)(2), as revised, requires a confidential employee to provide
sufficient guidance to enable the student to report to the Title IX
Coordinator by providing the student with information about how to
contact the Title IX Coordinator and how to make a complaint of sex
discrimination.
The Department agrees with commenters who suggested that
confidential employees who are informed about possible sex
discrimination must explain to the disclosing individual how to report
the conduct to the Title IX Coordinator and how the Title IX
Coordinator can help. The Department has incorporated these suggestions
in final Sec. 106.44(d)(2)(ii), regarding how to contact the Title IX
Coordinator and make a complaint of sex discrimination, and final Sec.
106.44(d)(2)(iii), regarding the Title IX Coordinator's ability to
offer and coordinate supportive measures, initiate an informal
resolution process, or initiate an investigation under the grievance
procedures. This information will assist complainants in considering
their options, as well as counter any misconceptions that the only
action a Title IX Coordinator can take in response to a report is to
initiate an investigation. The requirements of Sec. 106.44(d)(2) apply
to all three categories of confidential employees, including
researchers who qualify as confidential employees under the third
category of the definition. The Department declines to specifically
require researchers who fall within the third category of confidential
employees to provide the information required by Sec. 106.44(d)(2) as
part of their informed consent process because doing so would, in the
Department's opinion, inappropriately interfere with the researchers'
independence and professional judgment in carrying out their studies,
though the Department notes that nothing prohibits these employees from
doing so.
The Department acknowledges the special considerations that some
commenters have raised regarding how confidential employees assist
minor children in the elementary school and secondary school context.
The additional requirements in final Sec. 106.44(d)(2) will assist
confidential employees in responding to disclosures by all participants
in a recipient's education program or activity, and the Department
declines to articulate further requirements for confidential employees
in the elementary school and secondary school context because of the
importance of flexibility and discretion under the circumstances. As
stated above, nothing in this provision exempts a confidential employee
from complying with other Federal, State, or local laws that mandate
reporting, and the Department notes that, consistent with Sec.
106.6(g), nothing in this provision 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.
In response to comments regarding the ability of confidential
employees to offer, provide, or coordinate supportive measures, the
Department has added Sec. 106.44(d)(2)(iii) to specifically address
supportive measures. Section 106.44(d)(2)(iii) requires confidential
employees to explain that the Title IX Coordinator may be able to offer
and coordinate supportive measures, and the Department notes that
nothing in these final regulations prohibits a confidential employee
from providing additional information about the supportive measures
that may be available. The Department also recognizes that certain
confidential employees, such as a recipient's mental health counselor,
may be involved in implementing supportive measures. Under these final
regulations, a recipient must require its Title IX Coordinator to offer
and coordinate supportive measures under Sec. 106.44(f)(1)(ii);
however, Sec. 106.8(a) of these final regulations permits a recipient
to designate more than one employee to serve as a Title IX Coordinator
and also provides a recipient with the flexibility and discretion to
delegate specific duties of the Title IX Coordinator to one or more
designees, or to permit a Title IX Coordinator to delegate such duties
to one or more designees. Thus, as described in greater detail in the
discussion of Sec. 106.44(g), although the final regulations require a
Title IX Coordinator to retain ultimate oversight for offering and
coordinating supportive measures, nothing in the final regulations
otherwise restricts how these duties of offering and coordinating
supportive measures may be delegated to other personnel.
The Department has revised Sec. 106.44(d)(2) to refer to conduct
that reasonably may constitute sex discrimination, rather than conduct
that may constitute sex discrimination, to align with parallel
references throughout the final regulations. For additional discussion,
see the section of this preamble on Sec. 106.44(c). The Department has
also made some non-substantive revisions, including organizational
edits, to Sec. 106.44(d)(2) to improve clarity and readability.
Changes: The Department has made several revisions to Sec.
106.44(d)(2). First, the Department has replaced the requirement in
proposed Sec. 106.44(d)(2) that a confidential employee explain their
confidential status with the more detailed requirement in Sec.
106.44(d)(2)(i) that a confidential employee explain their status as
confidential for purposes of this part, including the circumstances in
which the employee is not required to notify the Title IX Coordinator
about conduct that reasonably may constitute sex discrimination.
Second, the Department has revised Sec. 106.44(d)(2) to refer to
conduct that reasonably may constitute sex discrimination, rather than
conduct that may constitute sex discrimination. Third, the Department
has replaced the requirement in proposed Sec. 106.44(d)(2) that the
confidential employee provide contact information for the recipient's
Title IX Coordinator and explain how to report information about
conduct that may constitute sex discrimination with the more detailed
requirements at Sec. 106.44(d)(2)(ii)-(iii) to explain how to contact
the recipient's Title IX Coordinator, explain how to make a complaint
of sex discrimination, and explain that the Title IX Coordinator may be
able to offer and coordinate supportive measures, as well as initiate
an informal resolution process or an investigation under the grievance
procedures.
Interaction Between Confidential Employees and Requirements of the
Title IX Grievance Procedures
Comments: Some commenters urged the Department to revise proposed
Sec. 106.45(b)(7) to exclude records provided to confidential
employees from investigations or to prohibit use of this evidence
unless the disclosing person provides voluntary, written consent for
use in the recipient's investigation. One commenter stated that
students would not expect confidential resources to provide records as
part of an investigation, warning that this treatment of the
[[Page 33585]]
records could undermine trust in confidential resources.
Some commenters asked the Department to make clear that
confidential employees are not required to act as advisors during the
grievance procedures or that the recipient is not permitted to appoint
a confidential employee as the advisor unless requested by a party or,
as some commenters suggested, by the complainant specifically. One
commenter noted that requiring a confidential employee to serve as a
student's advisor could negatively impact the legal privileges that
protect their confidential communications with the student.
Discussion: The Department agrees with commenters' concerns about
the need to protect information that is shared with a confidential
employee from being used in an investigation without consent from the
person who is disclosing information to the confidential employee.
Without such protection, a recipient could be obligated to gather
records in an investigation from confidential employees or attempt to
interview confidential employees during the investigation. The
Department has thus revised proposed Sec. 106.45(b)(7)(i) to exclude
evidence provided to a confidential employee unless the person to whom
the confidentiality is owed has voluntarily waived that
confidentiality. This revision protects against the use of information
obtained from confidential employees in investigations that would
likely undermine trust in the confidential employee and discourage
students from seeking this important source of support. The final
regulations incorporate the revisions proposed by commenters, with
streamlining edits and other modifications for clarity or consistency
with language used elsewhere in the section.
Confidential employees are not required by these regulations to act
as advisors during the grievance procedures. While a party may choose
to have a confidential employee serve as their advisor of choice under
final Sec. 106.46(e)(2), a postsecondary institution may not appoint
or otherwise require an individual who is currently a confidential
employee or an individual who received information related to the
particular case as a confidential employee to serve as the advisor to
ask questions on behalf of a party when the party lacks their own
advisor of choice. Accordingly, the Department has revised proposed
Sec. 106.46(f)(1)(ii)(B) to state that in the instances in which a
postsecondary institution is required to appoint an advisor to ask
questions on behalf of a party during a live hearing, a postsecondary
institution must not appoint a confidential employee. This approach
respects the party's autonomy to choose an advisor and avoids conflicts
of interest that may arise from requiring a confidential employee to
act as an advisor for a live hearing.
Changes: The Department has revised proposed Sec. 106.45(b)(7)(i)
to add that a recipient must exclude evidence provided to a
confidential employee unless the person to whom the confidentiality is
owed has waived the confidentiality voluntarily. The Department has
also added Sec. 106.46(f)(1)(ii)(B), which clarifies that if a
postsecondary institution chooses to use a live hearing, in those
instances in which a postsecondary institution is required to appoint
an advisor to ask questions on behalf of a party, a postsecondary
institution must not appoint a confidential employee to be the advisor.
5. Section 106.44(e) Public Awareness Events
Comments: Some commenters opposed the proposed public awareness
event exception in Sec. 106.44(e). For example, one commenter proposed
that a recipient should be required to respond to all known incidents
of sex discrimination. Other commenters asserted that the exception
would be inconsistent with what they viewed as the Department's
position that a recipient must respond to possible sex discrimination,
even over the objection of a complainant. Some commenters were
concerned that the public awareness event exception would incentivize
students to publicly defame others. Other commenters stated that the
Department lacks the authority to require a postsecondary institution
to use the information to inform its efforts to prevent sex-based
harassment.
Some commenters expressed concern about how information disclosed
at a public awareness event would impact an employee's notification
requirements in proposed Sec. 106.44(c) and asked the Department to
permit postsecondary institutions to exempt such information from the
notification requirements.
Some commenters urged the Department to make clear that the Title
IX Coordinator is not required to attend public awareness events in
order to comply with Sec. 106.44(b).
Other commenters urged the Department to broaden the public
awareness event exception. For example, some commenters asked the
Department to also exempt from a recipient's obligations under Sec.
106.44 information shared among members of sororities at confidential
sorority events if there is no ongoing risk of harm.
One commenter suggested that the Department require postsecondary
institutions to post information at public awareness events about how
to report sex-based harassment and receive supportive measures and post
a disclaimer about how information shared at a public awareness event
will be used by the postsecondary institution.
Some commenters stated that the public awareness event exception
should not apply to information about sex-based harassment that creates
an immediate and serious threat to the community. One commenter asked
the Department to require a postsecondary institution to act when
information reveals an ongoing threat to the health or safety of any
students, employees, or other persons instead of an imminent and
serious threat.
One commenter requested that the Department define ``public event''
and specify whether a public event qualifies under this provision if
the event is within the recipient's education program or activity but
held off campus or in a community space rather than on campus or
online. The commenter also asked the Department to define ``sponsored''
and ``raise awareness.''
Another commenter asked the Department to clarify how a recipient
should respond to disclosures made in the context of an academic
assignment and whether disclosures on social media may fall under the
public awareness event exception.
Discussion: The Department acknowledges the views of some
commenters that a postsecondary institution should be required to
respond to all known incidents of sex discrimination even if they are
disclosed at a public awareness event. By maintaining an exception,
however, the final regulations will account for the many benefits
provided by public awareness events including empowering and informing
students, and will avoid discouraging student participation that may
involve disclosure of personal experiences with sex-based harassment.
See 87 FR 41442-43. As explained in the July 2022 NPRM, the
Department's position is that given the many benefits of public
awareness events, it is appropriate to include a limited exception to
the required action that a postsecondary institution must take in
response to notification of information about conduct that reasonably
may constitute sex-based harassment. See id.
The exception only applies to a public awareness event held on a
[[Page 33586]]
postsecondary institution's campus or through an online platform
sponsored by a postsecondary institution to raise awareness about sex-
based harassment. In addition, even under this exception, a
postsecondary institution must still respond to notifications of sex
discrimination other than sex-based harassment and to notifications of
information about conduct that reasonably may constitute sex-based
harassment that indicates an imminent and serious threat to the health
or safety of a complainant, any students, employees, or other persons.
A postsecondary institution must also still respond to notifications of
sex discrimination, including sex-based harassment, if required by
legal obligations other than Title IX, such as Title VII. Moreover, the
postsecondary institution must still use the information to inform its
efforts to prevent sex-based harassment. Thus, the public awareness
exception represents a balanced approach to a relatively narrow yet
valuable set of on-campus and online sponsored events, and it will
assist postsecondary institutions in complying with their obligation to
effectuate Title IX's nondiscrimination mandate.
The Department disagrees it lacks the authority to require a
postsecondary institution to use information about sex-based harassment
disclosed at a public awareness event to inform its efforts to prevent
sex-based harassment. In enacting Title IX, Congress conferred the
power to promulgate regulations to the Department. 20 U.S.C. 1682. The
Supreme Court has noted that ``[t]he express statutory means of
enforc[ing] [Title IX] is administrative,'' as [t]h[at] statute directs
Federal agencies that distribute education funding to establish
requirements that effectuate the nondiscrimination mandate, and permits
the agencies to enforce those requirements through `any . . . means
authorized by law[.]' '' Gebser, 524 U.S. at 280-81 (quoting 20 U.S.C.
1682). When a recipient learns of sex-based harassment occurring in its
education program or activity at a public awareness event, it is well
within the Department's authority to require a recipient to use this
information in its efforts to prevent further sex-based harassment.
Moreover, nothing in Sec. 106.44(e) obligates a postsecondary
institution to take specific actions based on information disclosed
during a public awareness event. Instead, as explained in the July 2022
NPRM, a postsecondary institution has discretion to determine how to
incorporate information from such events into its prevention training.
See 87 FR 41443.
The Department also disagrees that the public awareness event
exception incentivizes students to publicly defame others or make
public accusations of harassment. As discussed above, the Department's
view is that public awareness events provide opportunities for students
to share information about their experiences and raise awareness of
sex-based harassment and thus are directly related to the goal of
eliminating sex discrimination. The commenters did not provide any
examples of defamation occurring at such events, and nothing in the
public awareness event exception is designed to encourage students to
defame others.
The Department declines to permit a postsecondary institution to
develop its own employee notification requirements, including deciding
whether an employee must report information disclosed at a public
awareness event. In order to ensure consistency in recipients'
obligations under Title IX in response to a notification of sex
discrimination, including sex-based harassment, and provide clarity for
postsecondary institutions, it is preferable to set out the employee
notification requirements with respect to public awareness events, as
opposed to permitting a postsecondary institution to develop its own
requirements.
As explained above, although it is important to enable students to
share information about sex-based harassment at a public awareness
event without obligating a postsecondary institution to respond under
Sec. 106.44, the Department determined that it would not be
appropriate to permit a postsecondary institution to ignore such
information. Thus, the Department declines to exempt such information
from the employee notification requirements in Sec. 106.44(c), and
such information must be reported to the Title IX Coordinator. The
Title IX Coordinator would then determine whether the information
indicates that there is an imminent and serious threat to the health or
safety of a complainant, any students, employees, or other persons as
well as coordinate the recipient's use of the information disclosed to
inform its efforts to prevent sex-based harassment (e.g., by increasing
lighting on school grounds or offering transportation options after
dark).
In response to commenters' concerns about privacy and autonomy, the
Department has revised the public awareness event exception to remove
the references to Sec. Sec. 106.45 and 106.46 to avoid the impression
that, when information disclosed at a public awareness event indicates
an imminent and serious threat to health or safety, the Title IX
Coordinator must automatically make a complaint and initiate the
postsecondary institution's grievance procedures under Sec. 106.45
and, as appropriate, Sec. 106.46 without first conducting a fact-
specific analysis. Rather, in such circumstances, the Title IX
Coordinator must comply with the obligations under Sec. 106.44(f),
including conducting a fact-specific analysis under Sec.
106.44(f)(1)(v) to determine whether the Title IX Coordinator must
initiate a complaint that complies with the postsecondary institution's
grievance procedures under Sec. 106.45, and if applicable Sec.
106.46.
As explained in the July 2022 NPRM, nothing in Sec. 106.44(e)
would require a postsecondary institution's employees to attend a
public awareness event. See 87 FR 41443. The Department clarifies here
that the reference in the July 2022 NPRM to ``employees'' was intended
to include the Title IX Coordinator. In response to commenters'
concerns, the Department has revised the public awareness event
exception to state that nothing in Title IX or part 106 of the
Department's regulations obligates a postsecondary institution's Title
IX Coordinator or any other employee to attend such public awareness
events.
The Department acknowledges commenters' suggestions for broadening
the public awareness event exception but declines to do so. As
explained above, the Department intentionally limited the public
awareness event exception to information about conduct that reasonably
may constitute sex-based harassment. The Department notes that the
language in Sec. 106.44(e) was changed from ``conduct that may
constitute sex-based harassment'' to ``conduct that reasonably may
constitute sex-based harassment'' to align with changes made to Sec.
106.44(c) as explained more fully in the discussion of Sec. 106.44(c).
The Department has determined that the benefits of public awareness
events justify creating an exception for this type of information only
and declines to cover information about potential sex discrimination
beyond sex-based harassment.
The Department also declines to cover disclosures made in other
settings. As explained in the July 2022 NPRM, the public awareness
event exception is appropriately limited to public awareness events
that meet certain criteria. See 87 FR 41443. The Department's position
is that information regarding conduct that reasonably may constitute
sex-based harassment must generally be provided
[[Page 33587]]
to the Title IX Coordinator in order to enable a postsecondary
institution to operate its education program or activity free from sex
discrimination with only limited exceptions. The Department notes that
nothing in the final regulations prohibits a postsecondary institution
from informing its community as to when information about conduct that
reasonably may constitute sex-based harassment shared in other
settings, including in sororities, must be reported to the
postsecondary institution's Title IX Coordinator and from informing
members of sororities of the availability of public awareness events
and confidential reporting options.
The Department declines to dictate the type of information a
postsecondary institution must provide at a public awareness event.
Declining to mandate the sharing of specified information allows
postsecondary institutions to design public awareness events in a way
that will be most accessible to their educational communities and most
effectively encourage participation. The Department notes that nothing
in the final regulations prohibits a postsecondary institution from
sharing the contact information of the recipient's Title IX Coordinator
or information about how to report or make a complaint of
discrimination, including sex discrimination, at a public awareness
event. In addition, nothing in the final regulations prohibits a
postsecondary institution from informing its community how information
shared during a public awareness event will be used.
The Department further declines to revise the public awareness
event exception to require a postsecondary institution to act when the
information reveals an ongoing threat to the health or safety of the
campus community. As explained in the July 2022 NPRM, it is appropriate
to align the language regarding a threat to health or safety in the
public awareness event exception with the language in Sec. 106.44(h)
regarding emergency removals. See 87 FR 41443. Accordingly, the
Department has revised ``immediate and serious threat to the health or
safety'' to ``imminent and serious threat to the health or safety'' in
the public awareness event exception to align with a similar change the
Department made to Sec. 106.44(h). The Department's reasons for this
change are addressed in the discussion of Sec. 106.44(h) in this
preamble. The Department also revised the language in Sec. 106.44(e)
regarding the threat to students or other persons in the postsecondary
institution's community to instead reference ``a complainant, any
students, employees, or other persons'' to align with the language in
Sec. 106.44(h).
The Department does not agree that it is necessary to provide
additional definitions for any of the terms used in the public
awareness event exception. As explained in the July 2022 NPRM, the
public awareness event exception covers events that are 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 events or other events at which
a postsecondary institution's students may disclose experiences with
sex-based harassment. 87 FR 41443. To alleviate any confusion regarding
what type of public awareness events are covered, the Department has
removed language implying that the exception only applies to public
awareness events to raise awareness about sex-based harassment
``associated with a postsecondary institution's education program or
activity.'' The removal of this language aligns with the Department's
intent to cover public awareness events to raise awareness about sex-
based harassment in general and not to limit the exception only to
public awareness events focused on sex-based harassment associated with
the postsecondary institution's education program or activity. The
Department appreciates the opportunity to clarify that, as explained in
the July 2022 NPRM, the public awareness event exception applies to
public awareness events held on a postsecondary institution's campus or
through an online platform sponsored by a postsecondary institution,
id.--and the exception does not cover events held off campus or in a
community space and does not cover disclosures made in the context of
an academic assignment or via social media. The Department maintains
that the public awareness event exception should not apply to off-
campus events, such as events held in spaces in the community
surrounding a postsecondary institution, because a recipient's
employees are less likely to attend those events, and hence there is a
smaller chance that, in the absence of the exception, the recipient's
Title IX Coordinator would be required to respond to disclosures of
conduct that may reasonably constitute sex discrimination. See 87 FR
41443.
The Department also maintains that the public awareness event
exception should not apply to disclosures made through academic
assignments or via social media. Academic assignments for a particular
class and an individual's social media posts generally do not serve the
important function of facilitating a broad public discussion about sex-
based harassment in the same way as public awareness events within the
meaning of Sec. 106.44(e). The Department thus maintains that the
underlying rationale for the exception--reducing the likelihood of
chilling student participation in the events--is less applicable to
these circumstances.
Changes: In final Sec. 106.44(e), the Department has changed
``conduct that may constitute sex-based harassment under Title IX'' to
``conduct that reasonably may constitute sex-based harassment under
Title IX or this part,''; and changed ``unless the information reveals
an immediate and serious threat to the health or safety of students or
other persons in a postsecondary institution's community'' to ``unless
the information indicates an imminent and serious threat to the health
or safety of a complainant, any students, employees, or other
persons.'' The Department also removed the phrase ``associated with a
postsecondary institution's education program or activity'' and the
references to Sec. Sec. 106.45 and 106.46. The Department has added at
the end of Sec. 106.44(e) the statement that ``nothing in Title IX or
this part obligates a postsecondary institution to require its Title IX
Coordinator or other any other employee to attend such public awareness
events.'' The Department has also made revisions to the order of words
for clarity, moving ``to raise awareness about sex-based harassment''
so that it immediately follows ``public event'' and states ``a public
event to raise awareness about sex-based harassment.''
6. Section 106.44(f) Title IX Coordinator Requirements
In the discussion of Sec. 106.44(a) above, the Department
explained that the framework it adopted in Sec. 106.44(a) of these
final regulations for Title IX compliance requires a recipient to
respond promptly and effectively when the recipient has knowledge of
conduct that reasonably may constitute sex discrimination. To align
with this framework and other provisions in these final regulations,
the Department reorganized the Title IX Coordinator requirements into
three parts. First, Sec. 106.44(f) clarifies that the Title IX
Coordinator is responsible for coordinating a recipient's compliance
with its obligations under Title IX and this part. Second, paragraphs
Sec. 106.44(f)(1)(i)-(vii) describe the actions a recipient must
require its Title IX Coordinator to take, upon being notified of
conduct that reasonably may constitute sex discrimination, in order
[[Page 33588]]
to promptly and effectively end any sex discrimination in the
recipient's education program or activity, prevent its recurrence, and
remedy its effects. Third, Sec. 106.44(f)(2) establishes that a Title
IX Coordinator is not required to take any of the specific actions
outlined in paragraphs (f)(1)(i)-(vii) if the Title IX Coordinator
reasonably determines that the conduct as alleged could not constitute
sex discrimination under Title IX or this part. The Department explains
the requirements of each part of Sec. 106.44(f) in the discussion
sections below.
The Department engaged in a thorough review of the 2020 amendments
as well as comments received through the Title IX Public Hearing and in
its listening sessions, and carefully considered the comments received
in response to the July 2022 NPRM. In light of that review, the
Department has determined that the final regulations best effectuate
Title IX's nondiscrimination mandate related to the role and
responsibilities of a Title IX Coordinator to coordinate a recipient's
compliance with Title IX. As a result of its comprehensive review, the
Department determined that a Title IX Coordinator must take the
required actions set out under Sec. 106.44(f)(1)(i)-(vii) to promptly
and effectively end any sex discrimination in a recipient's education
program or activity, prevent its recurrence, and remedy its effects.
Comprehensive Title IX Coordinator Requirements and Scope of the Title
IX Coordinator Role
Comments: Some commenters supported proposed Sec. 106.44(f) as
affording a comprehensive response to sex discrimination that would
align with the purpose of Title IX and more fully effectuate its
nondiscrimination mandate, including by addressing what commenters
described as the inadequate response to sex discrimination under the
2020 amendments. Commenters stated proposed Sec. 106.44(f) provided
greater flexibility to recipients and clear guidance that would likely
ensure a nondiscriminatory educational environment by requiring a
recipient's Title IX Coordinator to intervene early in response to
possible sex discrimination; provide equitable treatment and support to
individuals impacted by sex discrimination, including supportive
measures for complainants and respondents; offer resources to end sex
discrimination and prevent its recurrence; and respond to patterns,
trends, and risk factors to prevent future discrimination.
Other commenters were concerned that proposed Sec. 106.44(f) would
expand the Title IX Coordinator role beyond coordinating compliance,
including to involve broad enforcement and oversight responsibility.
Other commenters objected to the Department imposing specific
requirements directly on a recipient's Title IX Coordinator rather than
the recipient itself. One commenter expressed concern that the proposed
regulations would impede a recipient's ability to address concerns
about specific actions taken by the Title IX Coordinator. The commenter
asserted that, because of the various obligations assigned to the Title
IX Coordinator under the proposed regulations, the Title IX Coordinator
would have a conflict of interest and would not be able to neutrally
evaluate whether the actions the Title IX Coordinator took to respond
to sex discrimination were effective.
Some commenters raised concerns about the burden and impact on
Title IX Coordinators of expanding their responsibilities. Some
commenters expressed concern that an expanded Title IX Coordinator role
would diminish other individuals' sense of institutional responsibility
for Title IX compliance and asserted that recipients might have other
administrators or offices that could better satisfy some of the
requirements of proposed Sec. 106.44(f), such as offering and
coordinating supportive measures.
Some commenters expressed concern about anticipated compliance
costs and the administrability of proposed Sec. 106.44(f). For
example, commenters asserted that the Department failed to account for
differences among recipients, underestimated the resources required to
implement the proposed regulations, and overestimated recipients'
ability to employ and retain Title IX Coordinators who would be
equipped to comply with the proposed requirements. Some commenters
asserted proposed Sec. 106.44(f) would disempower complainants,
resulting in fewer reports of sex discrimination. Other commenters
stated recipients would face litigation risk when their Title IX
Coordinators initiate a complaint against a complainant's wishes.
Discussion: The Department acknowledges commenters' support for
Sec. 106.44(f) and agrees that the requirements of Sec. 106.44(f) of
these final regulations will ensure that Title IX Coordinators play a
central role and are responsible for coordinating recipients'
comprehensive compliance with their obligations under Title IX. The
Department agrees with commenters who described the structure of Sec.
106.44(f) as necessary to require Title IX Coordinators to respond to
patterns, trends, and risk factors. Together, the Title IX
Coordinator's oversight of a recipient's response to individual reports
and the action required to address and prevent future sex
discrimination for all participants in a recipient's education program
or activity, will help recipients provide an educational environment
free from sex discrimination as required by Title IX.
The Department agrees with commenters that Sec. 106.44(f) sets out
clearly defined requirements that will ensure a recipient addresses
conduct that reasonably may constitute sex discrimination as its Title
IX Coordinator becomes aware of it, through the Title IX Coordinator's
coordination of early intervention efforts in response to possible sex
discrimination; consistent, equitable treatment of complainants and
respondents; and provision of supportive measures and resources to end
sex discrimination and prevent its recurrence.
The Department also agrees with commenters that Sec. 106.44(f)
provides recipients greater flexibility and Title IX Coordinators
clearer instructions than Sec. 106.44(a) from the 2020 amendments
regarding how to respond to information about conduct that reasonably
may constitute sex discrimination. As explained in the discussion of
Sec. 106.44(a), under the 2020 amendments, a recipient with actual
knowledge of sexual harassment in its education program or activity
was, in the absence of a formal complaint, required only to ``treat
complainants and respondents equitably by offering supportive
measures'' and ``explain to the complainant the process for filing a
formal complaint.'' 34 CFR 106.44(a). However, the Department
determined that the 2020 amendments may in some cases have led to sex
discrimination in a recipient's educational environment not being fully
addressed. To address this concern, Sec. 106.44(f) gives recipients
and their Title IX Coordinators the guidance and flexibility they need
to meet their obligation under Sec. 106.44(a) by specifying how Title
IX Coordinators must respond to information about any conduct that
reasonably may constitute sex discrimination, not only sexual
harassment, in a recipient's education program or activity.
The Department acknowledges that some commenters expressed concern
that the proposed Title IX Coordinator requirements could have
improperly shifted responsibility for Title IX compliance from a
recipient to its Title IX Coordinator. This was not the Department's
intention. As explained in
[[Page 33589]]
the discussion of Sec. 106.8(a), a recipient is responsible for
compliance with obligations under Title IX, including the Title IX
Coordinator requirements set out in Sec. 106.44(f), and the Department
will hold the recipient responsible for meeting all obligations under
these final regulations. The Department is persuaded that changes
should be made to final Sec. 106.44(f) to clarify that a recipient is
ultimately responsible for compliance with these final regulations.
Therefore, the Department has revised final Sec. 106.44(f) to include
a statement that the Title IX Coordinator is responsible for
coordinating the recipient's compliance with its obligations under
Title IX and the Department's implementing regulations. This added text
indicates that the Title IX Coordinator's role stems from ``the
recipient's'' obligations, emphasizing that it is the recipient that
remains responsible for ensuring compliance with its obligations under
Title IX. At the same time, the reference to coordinating the
recipient's obligations ensures that Title IX Coordinators retain their
unique oversight role and their ability to serve as a trusted
institutional resource, which commenters asked the Department to
preserve.
The Department understands commenters' concerns that Sec.
106.44(f), together with other requirements in Sec. 106.44(b)-(k) and
other provisions in these final regulations, increases the scope of the
Title IX Coordinator's duties, which some commenters argued would
confer enforcement or ``extrajudicial authority'' on the Title IX
Coordinator and which others argued would overburden the Title IX
Coordinator. Although the Department's Title IX regulations have long
granted authority to the Title IX Coordinator to coordinate a
recipient's Title IX compliance, as well as the power to initiate a
complaint under limited circumstances, the Department disagrees that
Title IX Coordinators may use this authority to deprive individuals of
protected rights and freedoms. For a full explanation of the
intersection of Title IX with rights and freedoms such as free speech
rights, see the discussions of Sec. 106.2 (Definition of ``Sex-Based
Harassment'') and Sec. 106.44(a). Since regulations under Title IX
were first issued, see 40 FR 24128, 24139 (June 4, 1975), recipients
have had to designate an employee to coordinate a recipient's
compliance with Title IX, and the Department's enforcement experience
since that time does not lead it to believe that increasing the scope
of the Title IX Coordinator's oversight duties in certain respects will
result in inappropriately aggressive enforcement of Title IX's
requirements. Rather, in its enforcement experience, the Department has
observed that recipients often rely on their Title IX Coordinators to
oversee the recipient's compliance with Title IX, but do not always
afford their Title IX Coordinators sufficient and appropriate authority
to effectively coordinate all aspects of that compliance.
The Department has considered the comprehensive and robust nature
of the Title IX Coordinator role and agrees that it is an important
role that attracts dedicated professionals, but does not agree that
these final regulations will deter individuals from serving in the role
of Title IX Coordinator or fulfilling their obligations. The Department
recognizes that recipients face competing demands for limited
resources. However, as the Department explained in the July 2022 NPRM,
a recipient must nonetheless ensure that the Title IX Coordinator is
effective in their role by giving the Title IX Coordinator the
appropriate authority, support, and resources to coordinate the
recipient's Title IX compliance efforts. 87 FR 41424-25. This was
recognized in the preamble to the 2020 amendments as well, where the
Department emphasized that a recipient must not designate a Title IX
Coordinator ``in name only'' and instead must fully authorize them to
coordinate the recipient's efforts to comply with Title IX. 85 FR 30464
(internal quotation marks omitted). Recipients retain flexibility to
determine how to structure and support the Title IX Coordinator role
but must do so in a way that ensures that a Title IX Coordinator can
effectively coordinate the recipient's compliance with Title IX. A
Title IX Coordinator's effectiveness also depends on the relationships
and trust that they build within a recipient's community. The
Department disagrees that the additional requirements Sec. 106.44(f)
places on Title IX Coordinators will impair a Title IX Coordinator's
ability to build trust or will discourage reports of sex
discrimination. Instead, the Department views these requirements as
facilitating greater institutional effectiveness in responding to
reports of sex discrimination. The Department agrees with commenters
who indicated that ineffective responses to reports of sex
discrimination contribute to a lack of trust and decrease reporting,
and further agrees that effective implementation of Title IX's
protections against sex discrimination will build trust in the Title IX
Coordinator and will not deter individuals from making complaints. The
Department addresses commenters' concerns about preserving complainant
autonomy in the discussion of Title IX Coordinator-initiated complaints
below.
The Department recognizes that Sec. 106.44(f) and other provisions
of these final regulations may add to Title IX Coordinators' existing
duties and responsibilities. However, the Department disagrees that
Sec. 106.44(f) restricts how recipients allocate responsibility for
the various Title IX Coordinator requirements and agrees with
commenters that recipients should decide how best to meet these
requirements, including by distributing them among employees of a
recipient's other offices or programs that are well equipped to fulfill
certain requirements. As the Department explained in the discussion of
Sec. 106.8(a), these final regulations permit a recipient to designate
more than one employee to serve as a Title IX Coordinator. Section
106.8(a) also provides recipients with the flexibility and discretion
to delegate specific duties of the Title IX Coordinator to one or more
designees or permit a Title IX Coordinator to delegate such duties to
one or more designees. In the case of supportive measures, the
Department's discussion of Sec. 106.44(g) explains that under these
final Title IX regulations, a Title IX Coordinator may delegate
responsibilities under Sec. 106.44(f)(1)(ii) related to offering and
coordinating supportive measures to designees. Such delegation enables
a recipient to assign duties to personnel who are best positioned to
perform them; to avoid actual or perceived conflicts of interest; and
to align with the recipient's administrative structure. See discussion
of Sec. 106.44(g). The Department understands commenters' concerns
about the human capital needed to comply with Sec. 106.44(f) and other
provisions of these final regulations. However, the Department is not
persuaded that a Title IX Coordinator would not have the capacity to
oversee other individuals or offices that may assist in performing any
delegated Title IX Coordinator requirements. Through its enforcement
experience, OCR has worked with recipients of different sizes and
structures, including public and private, K-12, and postsecondary
institutions, and has observed a range of administrative oversight
structures and other organizational approaches for ensuring Title IX
compliance. The Department understands from this experience that the
human capital and other resources recipients devote to structuring
Title IX compliance efforts vary greatly and often involve
[[Page 33590]]
coordination among offices such as the dean of students, office of
academic affairs, office of student conduct, human resources office,
counseling and psychological services, and the individual or office
designated to provide support to students with disabilities.
Coordinating these administrative structures is no different than the
coordination required of other high-level employees and officials who
oversee other aspects of a recipient's operations, such as a dean or
vice president of academic affairs. In some situations, it may be
helpful to designate specific employees to coordinate on certain Title
IX issues, such as gender equity in academic programs, athletics,
pregnancy or related conditions, sex-based harassment, or complaints
from employees.
The Department disagrees that two sources cited by some commenters
support their argument that these final regulations impose obligations
on Title IX Coordinators that they are not equipped to meet. In
Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX
Coordinators on College and University Campuses, 8 Behavioral Sci. 4
(2018), the authors summarized the results of a study that compiled
anonymous survey responses from almost 700 Title IX Coordinators at
four- and two-year postsecondary institutions in 42 States. The article
reported that the majority of the Title IX Coordinator survey
respondents indicated that they ``felt that they were well-trained to
do their jobs.'' The article recommended full-time roles and greater
staff support for Title IX Coordinators to perform their duties. The
second article cited by the commenters, Sarah Brown, Life Inside the
Title IX Pressure Cooker, Chronicle of Higher Education (Sept. 5,
2019), relied in part on survey data reported in the first article, in
addition to interviews with Title IX Coordinators who reported feeling
overburdened and under-resourced to fulfill their duties. Both articles
were published before the 2020 amendments. Because these final
regulations afford Title IX Coordinators and recipients a clearer
understanding of Title IX Coordinators' responsibilities, and
recipients' ultimate responsibility for Title IX compliance, recipients
are better positioned to provide the resources needed to ensure their
Title IX Coordinators can meet their obligations. Moreover, the
Department's final regulations are consistent with the first article's
recommendation that recipients employ full-time Title IX Coordinators
and specifically allow Title IX Coordinators to delegate duties to
other recipient staff, which further supports Title IX Coordinators in
fulfilling their responsibilities. Finally, the Department acknowledges
that some commenters stated the requirements of Sec. 106.44(f) are
consistent with steps that some recipients are already obligated to
take to satisfy State law, which further demonstrates that these final
regulations do not impose requirements that exceed the capacity of a
well-trained and fully supported Title IX Coordinator.
The Department does not agree with the commenter who asserted that
a Title IX Coordinator cannot both oversee a recipient's compliance
with its Title IX obligations and perform any of the underlying duties
that are necessary to comply with these final regulations because the
Title IX Coordinator would have a conflict of interest. While it is
true that the Title IX Coordinator must oversee the recipient's
compliance with requirements such as providing reasonable modifications
for a pregnant student or providing supportive measures, see Sec. Sec.
106.40(b)(3)(ii) and 106.44(f)(1)(ii), if a question were to arise
regarding the efficacy of a recipient's reasonable modifications or
supportive measures, the Title IX Coordinator would generally be in a
position to address such concerns. The Department also acknowledges,
however, that if a concern is raised questioning the efficacy of the
Title IX Coordinator's efforts to coordinate the provision of
reasonable modifications or supportive measures, the recipient would
likely need to ensure that an alternative individual resolves the
concern to avoid a conflict of interest or a biased determination.
Section 106.8(a)(2) specifically allows a recipient to delegate
specific duties to employees other than the Title IX Coordinator, and
one of these delegees could be tasked with providing input on whether a
particular action taken by the Title IX Coordinator was effective.
Finally, Sec. 106.8(d)(2)(iii) and (4) require a recipient to train
its Title IX Coordinator on, among other things, bias and impartiality
to ensure that the Title IX Coordinator can identify situations in
which they may be biased or conflicted out of taking a particular
action.
The Department also disagrees that Sec. 106.44(f) will increase
recipient costs because a Title IX Coordinator's ability to initiate a
complaint against a complainant's wishes will expose recipients to
greater litigation risk. As explained above, the Department's Title IX
regulations have long permitted a Title IX Coordinator to initiate
complaints. Rather than increasing a risk that they will do so against
a complainant's wishes, the final regulations provide clear
instructions to make it more likely that Title IX Coordinators will
honor complainant wishes as much as possible and initiate complaints on
their own only in a very specific and limited set of circumstances. See
Sec. 106.44(f)(1)(v). The Department has considered the costs,
including potential litigation costs, in the Regulatory Impact Analysis
and concluded that the Title IX Coordinator requirements, including the
provision regarding Title IX Coordinator-initiated complaints, are
necessary to ensure a recipient addresses conduct that reasonably may
constitute sex discrimination in its education program or activity and
thereby fulfills its obligations under Title IX.
Finally, the Department disagrees with the commenter who asserted
that the Title IX Coordinator requirements would diminish other
employees' sense of institutional responsibility for Title IX
compliance. As noted above, the Title IX Coordinator role is not new,
and the Department views collaboration among employees to carry out
Title IX obligations as critical to Title IX compliance. For example,
in OCR's enforcement experience, recipients often encourage cooperation
between a Title IX Coordinator and other employees to ensure consistent
enforcement of recipient policies. The Title IX Coordinator may have to
work closely with many different members of the school community whose
job responsibilities relate to the recipient's Title IX obligations,
including administrators, counselors, athletic directors, advocates,
and legal counsel. These final regulations enable a recipient to ensure
that all employees whose work relates to Title IX communicate with one
another and have the necessary support. See, for example, Sec.
106.8(c) and (d), which require a recipient to provide a notice of
nondiscrimination and training for specific employees, and Sec.
106.44(c), which clarifies that all employees have some notification
responsibilities.
Changes: The Department has revised proposed Sec. 106.44(f) to
state that a recipient's Title IX Coordinator is responsible for
coordinating a recipient's compliance with its obligations under Title
IX and this part.
Prompt and Effective Action Necessary To Remedy the Effects of Sex
Discrimination
Comments: Some commenters asked the Department to clarify the
meaning of ``prompt and effective'' and ``remedy the effects'' in
proposed Sec. 106.44(a).
[[Page 33591]]
Some commenters opposed the proposed Title IX Coordinator
requirements, which the commenters asserted would divert a Title IX
Coordinator's attention and a recipient's resources, away from where
they are most needed, i.e., responding to complaints of discrimination.
Discussion: The Department appreciates the opportunity to further
explain what it means by ``prompt[ ] and effective[ ]'' action and
action to ``remedy [the] effects'' of sex discrimination in Sec.
106.44(f)(1). As explained in the discussion of Sec. 106.44(a) above,
there are important differences between the judicial and administrative
enforcement of Title IX. The Department's focus in the administrative
enforcement context is on a recipient's responsibility under the Title
IX statute and the Department's regulations to take prompt and
effective action to prevent, eliminate, and remedy sex discrimination
occurring in its education program or activity. 87 FR 41432. A
recipient's duty to take prompt and effective action is a standard
familiar to recipients from the Title IX regulations issued in 1975 as
well as OCR's prior guidance and decades of the Department's
enforcement of Title IX predating the 2020 amendments. See 40 FR 24128,
24139 (June 4, 1975); 1997 Sexual Harassment Guidance; 2001 Revised
Sexual Harassment Guidance.
As the Department explained in the July 2022 NPRM and reaffirms
here, there is not a specific timeframe for ``prompt'' action to end
sex discrimination. 87 FR 41434. The Department's views regarding how
to evaluate prompt action are consistent with the Department's views in
the 2020 amendments. A reasonably prompt response to sex discrimination
``is judged in the context of the recipient's obligation to provide
students and employees with education programs and activities free from
sex discrimination.'' 87 FR 41434 (quoting 85 FR 30269 (discussing a
recipient's grievance process)). The Department continues to believe
that ``prompt'' action to end sex discrimination in a recipient's
education program or activity is necessary to further Title IX's
nondiscrimination mandate, including with respect to alleged sex
discrimination that is addressed outside of a recipient's Title IX
grievance procedures. Id. Therefore, an unreasonable delay by a
recipient's Title IX Coordinator to take the required action under
Sec. 106.44(f)(1) to end sex discrimination in a recipient's education
program or activity, prevent its recurrence, and remedy its effects,
would not meet Title IX's obligation.
With respect to effective action, the Department considers
effective action to mean that a Title IX Coordinator, upon learning of
conduct that reasonably may constitute sex discrimination, takes
reasonable steps calibrated to address possible sex discrimination
based on all available information. And when a Title IX Coordinator's
oversight and coordination of a recipient's response through the
specific actions required under Sec. 106.44(f)(1)(i)-(vii) are not
effective at ending sex discrimination and preventing its recurrence,
the prompt and effective response requirement means that the Title IX
Coordinator must reevaluate the response and take additional steps to
end sex discrimination in the recipient's education program or
activity.\36\ If a Title IX Coordinator fails to do so, the recipient
fails to meet its obligations under Sec. 106.44(a) and (f) and does
not demonstrate compliance with the requirements of Title IX and this
part. The Department describes the effective actions a Title IX
Coordinator is required to take in the discussion of Sec.
106.44(f)(1), below. Additional discussion of ``other appropriate
prompt and effective steps'' that a Title IX Coordinator is required to
take under Sec. 106.44(f)(1)(vii) that are outside of a recipient's
grievance procedures is provided below.
---------------------------------------------------------------------------
\36\ Even when a recipient's response to sex discrimination is
assessed under the deliberate indifference standard in a private
action for damages, some courts have recognized under certain
circumstances that the recipient must take additional responsive
action if its initial efforts to end sex discrimination are
ineffective. See, e.g., Cianciotto ex rel. D.S. v. N.Y.C. Dep't of
Educ., 600 F. Supp. 3d 434, 458 (S.D.N.Y. 2022) (denying motion to
dismiss when the complaint alleged school officials failed to
intensify, reassess, or adjust their response to reports of ongoing
and escalating sex-based harassment); Doe v. Sch. Dist. No. 1,
Denver, 970 F.3d 1300, 1314 (10th Cir. 2020) (reversing dismissal of
a complaint that adequately pled deliberate indifference by school
officials who allegedly knew their actions to end continued sexual
harassment ``had not sufficed'' yet failed ``to try something
else'').
---------------------------------------------------------------------------
The Department also reaffirms and clarifies the duty of a Title IX
Coordinator under Sec. 106.44(f)(1) to remedy the effects of any sex
discrimination that occurred in a recipient's education program or
activity. When a recipient determines that sex discrimination occurred,
it must provide and implement remedies to the 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. This requirement is consistent not only with the
definition of ``remedies'' in final Sec. 106.2, which are provided to
restore or preserve equal access to a recipient's education program or
activity, but with the Title IX statute itself. See 20 U.S.C. 1681(a)
(``No 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[.]''). Similarly, if a recipient
determines that its own response to a complaint of sex discrimination
(e.g., a report to the Title IX Coordinator or a request for
modification for a pregnant student) discriminated based on sex because
of either the recipient's policies or the way it implemented those
policies, the recipient would be required to provide remedies for its
own discrimination based on sex and take any additional action
necessary to prevent the recurrence of sex discrimination. 87 FR 41433-
34.
The Department disagrees with commenters who asserted that proposed
Sec. 106.44(f) would improperly divert the focus of Title IX
Coordinators from responding to sex discrimination complaints to
seeking out possible sex discrimination. The obligations that Sec.
106.44(f)(1) places on a recipient's Title IX Coordinator relate
directly to the Title IX Coordinator's duty to coordinate the
recipient's response to sex discrimination, including a recipient's
obligation to respond to complaints of sex discrimination and its
obligation to address information about conduct that reasonably may
constitute sex discrimination. The Department disagrees that either
obligation should be prioritized over the other. Thus Sec.
106.44(f)(1)(i)-(iii) require a recipient to ensure that the Title IX
Coordinator treats the complainant and respondent equitably, offers
supportive measures, and provides information about a recipient's
grievance procedures; these duties are consistent with what a Title IX
Coordinator must do under Sec. 106.44(a) of the 2020 amendments. These
obligations ensure that a Title IX Coordinator responds to complaints
and information about conduct that reasonably may constitute sex
discrimination in an unbiased manner that supports individual
complainants and respondents; they do not distract from the Title IX
Coordinator's obligation to respond to such complaints and
information--they qualify the nature of the response to ensure the
response is effective.
Nor do the other requirements of Sec. 106.44(f)(1) distract from a
Title IX Coordinator's response to sex discrimination. To the contrary,
Sec. 106.44(f)(1) directly advances the Title IX Coordinator's
responsibility to
[[Page 33592]]
respond to sex discrimination by initiating the recipient's grievance
procedures to determine whether such discrimination occurred. Similar
to the 2020 amendments, Sec. 106.44(f)(1)(v) allows a Title IX
Coordinator discretion to determine whether to make a complaint. See 34
CFR 106.30(a) (defining a formal complaint as a written document filed
by a complainant or signed by a Title IX Coordinator). In addition,
paragraphs (f)(v) and (vi) include guardrails to protect complainant
autonomy and safety, which will help ensure that individuals are not
dissuaded from reporting sex discrimination, thus ensuring the
recipient is informed of sex discrimination to which it must respond.
Finally, paragraph (f)(vii) specifically requires that a Title IX
Coordinator take steps to ensure that sex discrimination does not
continue or recur in the recipient's education program or activity, and
hence it, too, directly advances the goal of responding to sex
discrimination.
Changes: As described below in the discussions of Title IX
Coordinator-initiated complaints, prompt and effective steps to ensure
sex discrimination does not continue or recur, and comments on proposed
Sec. 106.44(f)(1)-(4), the Department has revised Sec. 106.44(f) to
require a recipient to require its Title IX Coordinator to take
specific actions set out under paragraph (f)(1) to promptly and
effectively end any sex discrimination in its education program or
activity, prevent its recurrence, and remedy its effects when notified
of conduct that reasonably may constitute sex discrimination under
Title IX or this part, unless the Title IX Coordinator reasonably
determines under paragraph (f)(2) that the conduct as alleged could not
constitute sex discrimination under Title IX or this part.
Conduct That Reasonably May Constitute Sex Discrimination
Comments: Some commenters asked the Department to clarify what
information would provide notice of ``conduct that may constitute sex
discrimination'' that would require a Title IX Coordinator to take the
steps under proposed Sec. 106.44(f)(1)-(6). Some commenters raised
concerns that requiring recipients to respond fully to every
allegation, including those that do not adequately allege sex
discrimination, would waste resources, be unduly burdensome on
recipients, and divert support from where it is needed. Other
commenters asked whether the requirements would only apply after
assessing that the conduct alleged constitutes sex discrimination or
only if the Title IX Coordinator reasonably believes the conduct
alleged constitutes sex discrimination under Title IX. Some commenters
stated that the Department lacked statutory authority to require
recipients to address conduct that ``may constitute sex
discrimination'' and that is not sex discrimination.
Some commenters opposed the increased duties that proposed Sec.
106.44(f) would impose on Title IX Coordinators in light of other
changes in the Department's proposed regulations, including the
proposed definition of ``sex-based harassment'' in Sec. 106.2 and the
notification requirements in proposed Sec. 106.44(c). Some commenters
stated that, taken together, the proposed provisions would require
employees to report conduct to a recipient's Title IX Coordinator even
if it could not reasonably be considered sex discrimination and would
require a Title IX Coordinator to act in response to such conduct,
often against a complainant's wishes.
Discussion: The Department is persuaded that a change should be
made to Sec. 106.44(f) to clarify that the Title IX Coordinator
requirements will apply when the Title IX Coordinator is notified of
conduct that ``reasonably'' may constitute sex discrimination under
Title IX or this part. The Department agrees with commenters who stated
the Title IX Coordinator requirements should not apply to conduct that
on its face would not or could not constitute sex discrimination and
notes that it would not have authority under Title IX to require such
action. The Department does not intend to require a Title IX
Coordinator to address conduct that as alleged could not constitute sex
discrimination under Title IX or this part. The Department notes that a
recipient would, however, have obligations under Sec. 106.44(a) for
conduct that reasonably may constitute sex discrimination. The
Department declines to make the changes other commenters requested,
including changing the Title IX Coordinator requirements to apply only
after a Title IX Coordinator assesses the conduct as alleged and
determines that it constitutes sex discrimination. A Title IX
Coordinator does not determine that conduct as alleged constituted sex
discrimination prior to taking the steps required under final Sec.
106.44(f)(1); that determination can only be made by a recipient
following grievance procedures undertaken consistent with the
requirements of Sec. 106.45, and if applicable Sec. 106.46.
The revised requirements will obligate a Title IX Coordinator to
act only when notified of conduct that reasonably may constitute sex
discrimination. Paragraphs (f)(1) sets out the specific actions a Title
IX Coordinator must take. The Department agrees with commenters that
neither a Title IX Coordinator nor a recipient should be required to
respond to every assertion of sex discrimination without assessing
whether the conduct as alleged reasonably may constitute sex
discrimination. A Title IX Coordinator should be permitted to use their
judgment and expertise, consistent with these regulations, to determine
whether some notifications could not reasonably constitute sex
discrimination as alleged. To that end, the Department clarifies in
Sec. 106.44(f)(2) of the final regulations that none of the Title IX
Coordinator requirements in Sec. 106.44(f)(1) apply when the Title IX
Coordinator reasonably determines that the conduct as alleged could not
constitute sex discrimination under Title IX or this part.
The Department understands that a Title IX Coordinator will have
unique expertise and specialized training that may in some cases
distinguish their assessment of alleged sex discrimination from the
assessment of the same conduct by a recipient's other employees,
including employees a recipient trained under Sec. 106.8(d)(1) on the
scope of sex discrimination. The Title IX Coordinator will also have a
broader perspective on conduct that reasonably may constitute sex
discrimination because of their coordination of a recipient's Title IX
compliance, including offering and coordinating supportive measures,
and initiating grievance procedures and the recipient's informal
resolution process, if any. In coordinating these actions for all
reports of alleged sex discrimination, a Title IX Coordinator may be
aware of prior conduct, incidents, or concerns that may shed light on
the allegations. The Department understands that a Title IX
Coordinator's assessment of whether conduct as alleged reasonably may
constitute sex discrimination would draw on this institutional
expertise and perspective. So, while a recipient must train and require
its non-confidential employees to report information about conduct that
they believe reasonably may constitute sex discrimination to the Title
IX Coordinator under Sec. 106.44(c), a Title IX Coordinator's
assessment of the same report might reasonably conclude that the
conduct as alleged could not constitute sex discrimination.
These changes address commenters' concerns that the proposed
regulations
[[Page 33593]]
would have required Title IX Coordinators to satisfy proposed Sec.
106.44(f) even after being notified of conduct that on its face would
not constitute sex discrimination. These changes also address
commenters' concerns that requiring a Title IX Coordinator to satisfy
the obligations set out in proposed Sec. 106.44(f) for every
allegation of sex discrimination without considering whether the
conduct as alleged reasonably may constitute sex discrimination could
negatively impact a Title IX Coordinator's ability to coordinate a
recipient's Title IX compliance. The Department appreciates the
opportunity to clarify that nothing in these regulations addresses
conduct that does not reasonably constitute sex discrimination or
precludes a recipient from addressing this conduct through other means.
Changes: The Department has revised Sec. 106.44(f) such that a
Title IX Coordinator, when notified of conduct that reasonably may
constitute sex discrimination under Title IX or this part, will be
required to take the actions set out under paragraph (f)(1), unless the
Title IX Coordinator determines, pursuant to paragraph (f)(2), that the
conduct as alleged could not constitute sex discrimination under Title
IX or this part.
Title IX Coordinator-Initiated Complaints
Comments: Commenters expressed varied views on the proposed
requirements for Title IX Coordinator-initiated complaints under
proposed Sec. 106.44(f)(5). Some commenters supported the proposed
provision and viewed it as likely to yield better outcomes for all
parties and as helpful for assisting a Title IX Coordinator in
determining whether to initiate a complaint. One commenter suggested
the Department clarify in the Title IX Coordinator requirements that a
recipient owes a duty under Title IX to its educational community, not
only a complainant.
Some commenters expressed concern that the proposed provision would
incentivize Title IX Coordinators to pursue complaints regarding all
reports of possible sex discrimination to avoid liability. Others
expressed concern that proposed Sec. 106.44(f)(5) would set too low a
bar for Title IX Coordinator complaint initiation.
In addition, some commenters raised concerns that proposed Sec.
106.44(f)(5) would deny complainants autonomy to choose whether to
pursue a complaint. One commenter asserted that the notification
requirements under proposed Sec. 106.44(c) and the complaint
initiation provisions of proposed Sec. 106.44(f)(5) together would
erode trust in Title IX Coordinators and decrease reports of possible
sex discrimination. Other commenters preferred Sec. 106.44(a) of the
2020 amendments, which requires a Title IX Coordinator, upon learning
of possible sex discrimination, to provide a complainant information
about supportive measures and the recipient's grievance procedures and
requires ``actual knowledge'' for a Title IX Coordinator to initiate a
complaint.
Commenters offered a range of views on the discussion in the July
2022 NPRM of the factors that a Title IX Coordinator should consider in
determining whether to initiate a complaint under proposed Sec.
106.44(f)(5). Some commenters supported the Department's view that the
factors would appropriately require a Title IX Coordinator to balance
complainant autonomy and a recipient's obligation to address sex
discrimination in its education program or activity.
Other commenters characterized the factors discussed in the
preamble as ambiguous and asked the Department to include clear
language in the final regulations or issue subsequent guidance on when
a Title IX Coordinator may initiate a sex discrimination complaint.
Different commenters asked the Department to grant recipients greater
flexibility to determine which factors warrant initiating a complaint.
One commenter stated that the factors discussed in the preamble would
require an investigation by the Title IX Coordinator to determine
whether to initiate a complaint.
Some commenters asserted that complaints initiated against a
complainant's wishes may be dismissed and are unlikely to result in a
determination of responsibility due to a lack of evidence.
Some commenters proposed modifications to balance complainant
autonomy against a recipient's duty to address and prevent sex
discrimination in its education program or activity. One commenter
recommended a modification to proposed Sec. 106.44(c) that any
nonconfidential employee of the recipient who is not an employee with
``authority to institute corrective measures'' be required to provide
the complainant with information on how to report sex discrimination so
that the decision whether to report sex discrimination to a recipient's
Title IX Coordinator rests with the complainant.
Some commenters questioned how proposed Sec. 106.44(f)(5) would
affect the rights of respondents. For example, some commenters stated
the proposed provision would deny respondent's constitutional rights,
including a right to confront their accuser, freedom of speech and
religion, and due process protections.
Other commenters raised concerns about how proposed Sec.
106.44(f)(5) would impact parents' rights, including that it would
authorize a Title IX Coordinator to initiate a complaint on behalf of a
minor without the authorization or consent of a parent, including
complaints about discrimination contrary to a parent's beliefs. One
commenter stated that the Department's proposed regulations create some
confusion about the extent of parent involvement and explained that it
would be impractical, and in some cases not feasible, to involve a
parent in a Title IX Coordinator's inquiry under proposed Sec.
106.44(f)(5) to determine whether to initiate a complaint.
Some commenters raised hypothetical scenarios and asked for
clarification on when a Title IX Coordinator would be required to
initiate a complaint. For example, commenters asked the Department to
clarify how a Title IX Coordinator should respond to alleged, egregious
sex discrimination that a complainant declines to pursue through the
recipient's grievance procedures for safety reasons; alleged
discrimination involving a party who no longer participates in the
recipient's education program or activity; and third-party complaints
that are not based on firsthand knowledge. Another commenter asked
whether a Title IX Coordinator would have discretion to initiate or
resume a grievance procedure if the respondent failed to satisfy the
terms of an informal resolution agreement or the Title IX Coordinator
determined that the informal resolution agreement did not end the sex
discrimination and prevent its recurrence.
Discussion: The Department has carefully considered commenters'
support, opposition, and concerns about the circumstances in which a
Title IX Coordinator may initiate a complaint when one is not pending
or has been withdrawn by a complainant and acknowledges the range of
comments related to proposed Sec. 106.44(f)(5). Final Sec.
106.44(f)(1)(v) and (f)(2) are part of a comprehensive set of Title IX
Coordinator requirements that will yield prompt and equitable outcomes
for all parties and provide clarity to Title IX Coordinators on how to
respond when notified of conduct that reasonably may constitute sex
discrimination in the absence of a complaint, in the withdrawal of any
allegations in a complaint, or in the absence or
[[Page 33594]]
termination of an informal resolution process under Sec. 106.44(k).
Under the 2020 amendments, when a Title IX Coordinator determined
that a non-deliberately indifferent response to alleged sex
discrimination required an investigation, the Title IX Coordinator had
the discretion to initiate a recipient's grievance process. 85 FR
30131. Although the Department, as in 2020, recognizes that a Title IX
Coordinator is in a specially trained position to evaluate whether
initiating the grievance procedures is necessary given the
circumstances, see 85 FR 30122, additional clarity is needed to provide
a recipient's Title IX Coordinator with guidance on how to assess
whether a complaint that would initiate a recipient's grievance
procedures is necessary to address alleged sex discrimination. This
additional instruction is necessary because the preamble to the 2020
amendments provided only one example of when a Title IX Coordinator
might initiate a complaint--when presented with allegations ``against a
potential serial sexual perpetrator''--but gave little guidance other
than this example on what factors a Title IX Coordinator should (or
should not) consider when determining whether to initiate the
recipient's grievance procedures. See 87 FR 41445 (quoting 85 FR
30131). Proposed Sec. 106.44(f)(5) sought to address these
shortcomings and provided that, upon being notified of conduct that may
constitute sex discrimination under Title IX and this part and in the
absence of a complaint, a Title IX Coordinator had to determine whether
to initiate a complaint. The July 2022 NPRM included six factors a
Title IX coordinator might weigh in accounting for both a recipient's
duty to ensure equal access to its education program or activity and a
nondiscriminatory educational environment, and the wishes of a
complainant not to proceed with a complaint investigation. Id. The
Department agrees with commenters that the discussion of the factors
that would assist a Title IX Coordinator in deciding whether to
initiate a complaint under proposed Sec. 106.44(f)(5) in the July 2022
NPRM, 87 FR 41445-46, provided helpful clarity on how a Title IX
Coordinator must balance complainant autonomy against a recipient's
obligation to address alleged sex discrimination in its education
program or activity. The Department further recognizes that proposed
Sec. 106.44(f) itself did not specify factors a Title IX Coordinator
must consider and weigh against a standard that prioritized complainant
autonomy except in certain limited circumstances. The Department
acknowledges that other commenters disagreed and requested greater
flexibility to determine when to initiate a complaint.
After careful consideration, the Department agrees with the
commenters who asserted the lack of criteria and factors in the
regulatory text created a potentially ambiguous situation in which
Title IX Coordinators might not know how to assess whether to initiate
a complaint. To address these concerns and provide additional clarity
on the narrow instances in which the Title IX Coordinator might
initiate a complaint, the Department has revised the regulations to
incorporate the factors described in the preamble to the July 2022 NPRM
with some modifications. The changes reflect commenters' suggestions
that a Title IX Coordinator assess potential harm to a complainant,
harm to the educational environment, whether conduct as alleged
presents an imminent and serious threat to the health or safety of a
complainant or other person, and whether a recipient would be prevented
from ensuring equal access on the basis of sex to its education program
or activity if a complaint is not initiated. The final regulations
enumerate eight factors that a Title IX Coordinator must consider, at a
minimum, in making the fact-specific determination whether to initiate
a complaint of sex discrimination in the absence of a complaint,
following the withdrawal of any or all of the allegations in a
complaint, and in the absence or termination of an informal resolution
process. These factors are:
(1) The complainant's request not to proceed with initiation of a
complaint. Although the preamble to the July 2022 NPRM did not
enumerate the complainant's request as a separate suggested factor a
Title IX Coordinator might consider, the Department explained in its
discussion of proposed Sec. 106.44(f)(5) that ``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.'' Final Sec. 106.44(f)(1)(v)(A)(1) incorporates that
consideration into the factors a Title IX Coordinator must consider.
(2) The complainant's reasonable safety concerns regarding
initiation of a complaint. Numerous commenters urged the Department to
require a recipient's Title IX Coordinator to take a complainant's
safety concerns into account in weighing whether to initiate a
complaint. The Department agrees with commenters that a complainant's
reasonable safety concerns are paramount to whether a Title IX
Coordinator should initiate a complaint. Therefore, the Department
added final Sec. 106.44(f)(1)(v)(A)(2) and (vi), which is discussed
further below, to ensure that a complainant's reasonable safety
concerns are properly weighed and addressed.
(3) The risk that additional acts of sex discrimination would occur
if a complaint is not initiated. The Department continues to believe
that a Title IX Coordinator must consider circumstances that suggest a
risk of additional acts of sex discrimination, which might include
whether there have been other reports or complaints of sex
discrimination by the respondent or a pattern of behavior that suggests
a risk of future discrimination by the respondent. See 87 FR 41445.
(4) The severity of the alleged sex discrimination, including
whether the discrimination, if established, would require the removal
of a respondent from campus or imposition of another disciplinary
sanction to end the discrimination and prevent its recurrence. This
tracks the discussion of two factors in the July 2022 NPRM--the
seriousness of alleged sex discrimination, such as whether the alleged
incident involved violent acts, threats of violence or retaliation, and
use of a weapon; and whether the alleged conduct, if established, might
require a respondent's removal or imposition of another disciplinary
restriction to end the discrimination and prevent its recurrence. Id.
(5) The age and relationship of the parties, including whether the
respondent is an employee of the recipient. This factor aligns with the
factor listed in the July 2022 NPRM suggesting a Title IX Coordinator
consider the age and relationship of the parties, and further requires
a Title IX Coordinator to specifically consider whether the respondent
is an employee of the recipient, which, as explained in the July 2022
NPRM, might indicate a power imbalance between the parties and could
also make it more likely that a Title IX Coordinator would initiate a
complaint to address the affected workplace or learning environment.
Id.
(6) The scope of the alleged sex discrimination, including
information suggesting a pattern, ongoing sex discrimination, or sex
discrimination alleged to have impacted multiple individuals. The sixth
factor also aligns with a factor listed in the July 2022 NPRM regarding
the scope of the alleged sex discrimination. Id.
[[Page 33595]]
(7) The availability of evidence to assist a decisionmaker in
determining whether sex discrimination occurred. The seventh factor
stems from a factor included in the July 2022 NPRM, with revisions to
clarify that the Title IX Coordinator, in deciding whether to initiate
a complaint at this stage, is not making a determination whether sex
discrimination occurred. Id. As explained in the July 2022 NPRM, the
lack or unavailability of such evidence could weigh against the Title
IX Coordinator initiating a complaint when a complainant has not
elected to do so, but the Department reiterates that a Title IX
Coordinator would still be required to comply with final Sec.
106.44(f)(1)(vii), by taking other appropriate prompt and effective
steps to ensure that sex discrimination does not continue or recur
within the recipient's education program or activity. Id.
(8) Whether the recipient could end the alleged sex discrimination
and prevent its recurrence without initiating its grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46. The Department
added the eighth factor to clarify for recipients that a Title IX
Coordinator may have means, other than through the initiation of a
recipient's grievance procedures, to end alleged sex discrimination and
prevent its recurrence. In particular, this may be a factor when there
is not a respondent and the alleged discrimination relates to a
recipient's policies or practices. For example, if an employee decides
to pursue remedies under an applicable collective bargaining agreement
instead of Title IX grievance procedures, the Title IX Coordinator
might determine that the collective bargaining agreement affords a
process outside of a recipient's Title IX grievance procedures that can
end sex discrimination and prevent its recurrence, which might counsel
against the Title IX Coordinator initiating a complaint of sex
discrimination that complies with the grievance procedures under Sec.
106.45, and if applicable Sec. 106.46.
Consideration of the factors in paragraph (f)(1)(v)(A) aims to
ensure that recipients only initiate grievance procedures without the
complainant or when the complainant has withdrawn some or all
allegations, in very limited, specific circumstances. A recipient
should not proceed without the complainant if the alleged conduct
neither presents an imminent and serious threat to the health or safety
of the complainant or other person, nor prevents the recipient from
ensuring equal access based on sex to its education program or
activity, see 87 FR 41445, and Sec. 106.44(f)(1)(v)(B) restricts a
Title IX Coordinator from initiating a complaint absent these
circumstances. The Department disagrees that a Title IX Coordinator
would be permitted to initiate a complaint based on mere suspicion or a
misunderstanding or would be encouraged to do so to avoid possible
legal liability, and in the Department's enforcement experience, it is
not likely that a Title IX Coordinator would do so.
The Department appreciates the opportunity to clarify how Sec.
106.44(f)(1)(v) will operate in practice. Under Sec.
106.44(f)(1)(v)(A), at a minimum, a Title IX Coordinator must consider
whether the alleged conduct implicates any of the considerations listed
in factors (1)-(8), described above. A Title IX Coordinator would
consider each of the eight factors in light of the alleged conduct and
the information available at that time. The Department notes that a
Title IX Coordinator's required consideration of these enumerated
factors does not preclude the Title IX Coordinator from considering
other information that may be known to them and that could also be
relevant to the Title IX Coordinator's ultimate decision whether to
initiate a complaint.
After considering each of the eight enumerated factors, along with
any other factors and information the Title IX Coordinator deems
relevant, the Title IX Coordinator must determine whether the conduct
as alleged presents an imminent and serious threat to the health or
safety of the complainant or other person, or whether the conduct as
alleged prevents the recipient from ensuring equal access based on sex
to its education program or activity as required under final Sec.
106.44(f)(1)(v)(B). If neither of the two considerations set out under
Sec. 106.44(f)(1)(v)(B) is present, then a recipient's Title IX
Coordinator must not initiate a complaint. A Title IX Coordinator may
have reason to believe that conduct as alleged implicates serious
health or safety concerns or threatens equal access to a recipient's
education program or activity, yet still determine that a complaint is
not necessary to address those concerns because events postdating the
conduct as alleged have ameliorated those concerns. For example, the
respondent might have resigned from their employment at the recipient
or withdrawn or transferred from the institution. In such cases there
may not be a present health or safety or equal access concern, in which
case a Title IX Coordinator's consideration of the factors in Sec.
106.44(f)(1)(v)(B) would not support initiating a complaint.
The Department notes that the standard a recipient will use to
assess whether conduct as alleged presents an imminent and serious risk
to health and safety will not differ from the assessment a recipient
will make of these same considerations prior to removing a respondent
under the emergency removal provision. The discussion of final Sec.
106.44(h) below provides additional explanation of such risks. The
addition of these requirements, which a Title IX Coordinator must
consider before initiating a complaint, addresses commenters' concerns
that the proposed regulations set too low a bar for Title IX
Coordinator-initiated complaints.
Consideration of the Sec. 106.44(f)(1)(v)(A) factors will not
require an investigation by a Title IX Coordinator to determine whether
to initiate a complaint. Most of the required factors relate to
information that the Title IX Coordinator will receive with the report
or in conversations with a complainant if they agree to speak with the
Title IX Coordinator, including the complainant's request not to
proceed with a complaint and any reasonable safety concerns shared, as
well as the severity of the alleged discrimination, the age and
relationship of the parties, and whether the respondent is the
recipient's employee. Other factors relate to information a Title IX
Coordinator may reasonably know from experience initiating complaints
and overseeing a recipient's compliance with its grievance procedure
requirements or from investigating similar or related complaints. This
information will help the Title IX Coordinator assess the scope of the
alleged conduct and whether the available information suggests a
pattern, ongoing sex discrimination, or conduct that is alleged to have
an impact on multiple individuals.
The Department appreciates the opportunity to clarify that a Title
IX Coordinator's initial assessment under Sec. 106.44(f)(1)(v) is a
threshold determination required to satisfy a recipient's obligation
under Title IX to ensure equal educational access on the basis of sex,
but it is not a credibility determination or an assessment of whether
sex discrimination occurred. For that reason, the Department uses the
term ``as alleged'' to refer to the information provided to a Title IX
Coordinator by a student or other person reporting conduct that
reasonably may constitute sex discrimination, consistent with the
definitions of complaint and complainant in final Sec. 106.2, or by an
employee fulfilling the requirements of
[[Page 33596]]
final Sec. 106.44(c) by notifying the Title IX Coordinator about
conduct that the employee believes reasonably may constitute sex
discrimination under Title IX. To meet the requirements of paragraph
(f)(2), a Title IX Coordinator would consider the information as
alleged along with any other relevant information to decide if the
information reported to them requires the Title IX Coordinator to
complete the steps in paragraph (f)(1)(v)(A).
Incorporating paragraph (f)(1)(v)(A) into the final regulations
appropriately accounts for commenters' support for a balancing approach
that weighs not only complainant autonomy, but also concerns for
complainant safety and a risk of harm from initiating a complaint that
the complainant may not support. The Department disagrees that these
final regulations will erode trust in a recipient's Title IX
Coordinator and has included provisions, including final Sec.
106.44(f)(1)(vi), to ensure a Title IX Coordinator maintains clear
lines of communication with complainants about actions the recipient
may take to fulfill the recipient's obligations under Title IX that may
be contrary to a complainant's wishes. In addition, under paragraph
(f)(1)(v)(A)(7), a Title IX Coordinator would need to consider the
availability of necessary evidence to assist a decisionmaker in
determining whether sex discrimination occurred, including evidence
that could be supplied only by the complainant, before deciding to
initiate a complaint without the complainant.
A Title IX Coordinator must consider factors such as the age and
relationship of the parties, the severity of the alleged conduct, and
whether the sex discrimination as alleged suggests a pattern, ongoing
sex discrimination, or widespread sex discrimination such as a sex-
based hostile environment that would implicate the rights of numerous
individuals to an educational environment free from sex discrimination.
These considerations are incorporated into paragraphs (f)(1)(v)(A)(4)-
(6) of the final regulations. As the Department explained in the July
2022 NPRM, these factors take into account a recipient's duty to ensure
equal access to its education program or activity and provide an
educational environment free from sex discrimination, and the
regulations require a Title IX Coordinator to also take into
consideration the complainant's individual interests. 87 FR 41445.
Additionally, as noted above, the Department added paragraph
(f)(1)(vi) to address possible safety concerns when a Title IX
Coordinator initiates a complaint without the complainant, and
potentially, over the complainant's objection. This provision of the
final regulations will require a Title IX Coordinator, after making the
determination to initiate a complaint, to notify the complainant before
doing so and appropriately address reasonable concerns related to the
complainant's safety or the safety of others. For example, the
complainant may have indicated to the Title IX Coordinator a preference
not to initiate the recipient's grievance procedures in a case
involving serious allegations of sexual misconduct because the
complainant encounters the respondent on the walk to and from classes.
The complainant may have a reasonable concern that the respondent will
engage in physically threatening behavior based on prior experiences.
The Title IX Coordinator could offer to address the complainant's
reasonable safety concerns by offering to provide an escort to
accompany the complainant to and from class. Regardless of the specific
measures a Title IX Coordinator might take to address the complainant's
reasonable safety concerns, paragraph (f)(1)(vi) requires the Title IX
Coordinator to inform the complainant that a complaint is being
initiated before doing so to ensure that the complainant is aware of
the complaint and able to raise any reasonable safety concerns. These
changes address how a Title IX Coordinator may respond to an allegation
of egregious sex discrimination that the complainant does not wish to
pursue because of safety concerns.
The Department also recognizes that commenters raised concerns
about the rights of respondents and parents in connection with a Title
IX Coordinator-initiated complaint. The Department shares commenters'
concerns about the costs and harms experienced by a respondent when a
complaint of sex discrimination is made against them, whether initiated
by a complainant or a Title IX Coordinator, and maintains that Sec.
106.44(f)(1)(v) appropriately balances those considerations against a
recipient's obligation to ensure it operates its education program or
activity free from sex discrimination. 87 FR 41445. As noted above,
these final regulations provide for Title IX Coordinators to initiate
complaints only in the circumstances of an imminent and serious threat
to the health or safety of the complainant or other person or conduct
that would prevent a recipient from ensuring equal access to its
education program or activity on the basis of sex. The Department does
not agree with commenters that respondents would be deprived of due
process or any other procedural rights protected by the U.S.
Constitution or Federal law. A Title IX Coordinator-initiated complaint
is investigated and resolved under a recipient's grievance procedures;
therefore, the rights to a fair process and the protections in Sec.
106.45, and if applicable Sec. 106.46, afforded to the complainant and
respondent, apply to such complaints. Additional discussion of how the
grievance procedures requirements under Sec. Sec. 106.45 and 106.46
afford all parties a fair process and necessary protections can be
found in the preamble discussion of those provisions.
With respect to parents, the Department has carefully considered
commenters' concerns and appreciates the opportunity to clarify that
Sec. 106.44(f)(1)(v) of the final regulations does not derogate any
legal right of a parent, guardian, or other authorized legal
representative to act on behalf of a complainant, respondent, or other
person. As explained in Sec. 106.6(g), a parent, legal guardian, or
other authorized legal representative must be permitted to exercise
whatever rights the parents, guardian, or other authorized legal
representative might have to act on behalf of a complainant or other
person as a result of State, local, or other sources of law; such
rights might include making a complaint of sex discrimination,
accompanying a minor student to meetings, interviews, and hearings, and
otherwise participating in the recipient's grievance procedures. A
Title IX Coordinator is not prohibited from consulting a parent in
conducting the inquiry to determine whether to initiate a complaint
under Sec. 106.44(f)(1)(v). The factors listed in paragraph
(f)(1)(v)(A) are, as the final regulations make clear, the minimum that
the Title IX Coordinator must consider and are not a restriction on
what may be considered. Further, when a parent and a minor student
disagree about a decision to make a complaint of sex discrimination,
deference to a parent, guardian, or other authorized representative
with a legal right to act on behalf of that student in such matters is
appropriate. As a general matter, it is appropriate for the Title IX
Coordinator to respect the wishes of the parent with respect to that
parent's child except in cases of serious threat to the health or
safety of the child. For example, if a recipient is concerned about
potential physical harm to a student, or a student's suicidality, the
recipient can act to protect the student. Where it is appropriate for
the Title IX Coordinator to defer to the parent with respect to a
[[Page 33597]]
complaint, the Title IX Coordinator may still be required to, as
necessary, take other steps generally to ensure equal access on the
basis of sex. The recipient could, for instance, provide training to
prevent sex-based bullying and harassment in the school.
Likewise, the Department disagrees that the Title IX Coordinator
complaint initiation requirements limit or restrict the rights of
respondents or parents to freedom of speech, expression, or religion,
which are covered by Sec. 106.6(d). We reaffirm that the Department
intends these Title IX regulations not to be interpreted to impinge
upon rights protected under the First Amendment, and the protections of
the First Amendment must be considered if issues of speech, expression,
or religion are involved. The Department also underscores that none of
the amendments to the regulations changes or is intended to change the
commitment of the Department, through these regulations and OCR's
administrative enforcement, to fulfill its obligations in a manner that
is fully consistent with the First Amendment and other guarantees of
the Constitution of the United States. For additional consideration of
the First Amendment, see the discussion of Hostile Environment Sex-
Based Harassment--First Amendment Considerations (Sec. 106.2) (Section
I.C)) and the discussion of Sec. 106.44(a) above.
Despite some commenters urging the Department to do so, it is
unnecessary to modify Sec. 106.44(f)(1)(v) to restrict Title IX
Coordinator-initiated complaints in response to third-party reports to
circumstances in which there is compelling evidence that the
discrimination occurred, was severe, endangers other students, and can
be addressed neutrally. The requirements of Sec. 106.44(f)(1)(v)(A),
which apply to all situations in which a complaint is not made or was
withdrawn in whole or in part, including situations in which conduct
was reported by an individual other than the complainant, are
sufficient to guide a Title IX Coordinator's determination whether to
initiate complaints based on third-party reports without this
modification.
The Department also acknowledges the hypothetical examples
commenters provided seeking clarification on Title IX Coordinator-
initiated complaints. Whether a complaint would need to be initiated in
specific circumstances is a fact-specific analysis that would need to
be made on a case-by-case basis. The Department recognizes that a Title
IX Coordinator must assess such scenarios under the requirements of
Sec. 106.44(f)(1)(v) and initiate a complaint only in the limited
circumstances permitted under the final regulations.
The Department understands commenters' views that recipients may
wish to explain to the members of their educational community the need
to balance individual complainant needs and wishes against the
overarching duty to address sex discrimination in a recipient's
education program or activity when deciding whether to initiate a
complaint. These regulations require such balancing and do not prohibit
such communication.
Changes: The Department has revised Sec. 106.44(f)(1)(v) in the
final regulations to clarify that in the absence of a complaint or the
withdrawal of any or all of the allegations in a complaint, and in the
absence or termination of an informal resolution process, a recipient
must require its Title IX Coordinator not to proceed with a complaint
investigation unless, after considering at a minimum the factors
described in paragraph (f)(1)(v)(A), the Title IX Coordinator
determines that the conduct as alleged presents an imminent and serious
threat to the health or safety of a complainant or other person, or
that the conduct as alleged prevents the recipient from ensuring equal
access on the basis of sex to its education program or activity as
required under paragraph (f)(1)(v)(B). The final regulations require a
Title IX Coordinator to consider at a minimum the following factors:
the complainant's request not to proceed with initiation of a complaint
(paragraph (f)(1)(v)(A)(1)); the complainant's reasonable safety
concerns regarding initiation of a complaint (paragraph
(f)(1)(v)(A)(2)); the risk that additional acts of sex discrimination
would occur if a complaint is not initiated (paragraph
(f)(1)(v)(A)(3)); the severity of the alleged sex discrimination,
including whether the discrimination, if established, would require the
removal of a respondent from campus or imposition of another
disciplinary sanction to end the discrimination and prevent its
recurrence (paragraph (f)(1)(v)(A)(4)); the age and relationship of the
parties, including whether the respondent is an employee of the
recipient (paragraph (f)(1)(v)(A)(5)); the scope of the alleged
conduct, including information suggesting a pattern, ongoing sex
discrimination, or sex discrimination alleged to have impacted multiple
individuals (paragraph (f)(1)(v)(A)(6)); the availability of evidence
to assist a decisionmaker in determining whether sex discrimination
occurred (paragraph (f)(1)(v)(A)(7)); and whether the recipient could
end the alleged sex discrimination and prevent its recurrence without
initiating grievance procedures (paragraph (f)(1)(v)(A)(8)). In
addition, paragraph (f)(1)(vi) of the final regulations requires, if a
Title IX Coordinator initiates a complaint under paragraph (f)(1)(v),
that the Title IX Coordinator notify the complainant prior to doing so
and appropriately address reasonable concerns about the complainant's
safety or the safety of others.
Prompt and Effective Steps To Ensure Sex Discrimination Does Not
Continue or Recur (Proposed Sec. 106.44(f)(6))
Comments: Commenters shared a range of views on proposed Sec.
106.44(f)(6). Some supported the proposed provision because it would
require a Title IX Coordinator, upon being notified of possible sex
discrimination, to take ``other appropriate prompt and effective
steps'' to end sex discrimination, in addition to the steps listed in
proposed Sec. 106.44(f)(1)-(5).
Other commenters stated the requirements of proposed Sec.
106.44(f)(6) were not well defined and a recipient would not know
whether its Title IX Coordinator had complied with them.
Some commenters objected to proposed Sec. 106.44(f)(6) because
they believed it would require a Title IX Coordinator to act on any
notice of possible sex discrimination, including when the conduct
reported does not adequately or plausibly allege sex discrimination.
One commenter asserted this requirement would be burdensome and divert
a recipient's resources away from where they are most needed, such as
responding to complaints of sex discrimination. Another commenter said
that requiring a Title IX Coordinator to take action prior to an
assessment about whether alleged conduct is persistent or severe would
be contrary to other statements in the July 2022 NPRM indicating that a
recipient is not required to address alleged sex-based harassment that
does not meet the proposed definition of ``sex-based harassment.''
Commenters also objected to proposed Sec. 106.44(f)(6) because
they believed it would authorize a Title IX Coordinator to conduct an
independent investigation and punish a respondent (whether by imposing
disciplinary sanctions or providing supportive measures) without
affording due process or following a recipient's established grievance
procedures, which some characterized as contrary to basic fairness and
in conflict with other provisions of the Department's proposed
regulations. One commenter noted that the July 2022 NPRM stated that
the
[[Page 33598]]
steps a Title IX Coordinator might take under proposed Sec.
106.44(f)(6) could cause the Title IX Coordinator to reconsider whether
to initiate a complaint if they believe disciplinary sanctions may be
needed to effectively end sex discrimination, and asked how a Title IX
Coordinator would know that disciplinary sanctions are needed if a
respondent is presumed not responsible until the conclusion of a
recipient's grievance procedures.
Some commenters asked the Department to clarify that proposed Sec.
106.44(f)(6) applies only after a Title IX Coordinator assesses the
information they received and determines a response is warranted
because the allegation describes conduct that would constitute sex
discrimination. One commenter, a postsecondary institution, asked the
Department to provide recipients flexibility to determine how to
proceed in cases when a complainant does not initiate grievance
procedures and the Title IX Coordinator determines the reported conduct
does not require the initiation of a complaint, including the
flexibility to decide no further action is necessary. Another commenter
asserted that the requirements of proposed Sec. 106.44(f) effectively
set a ``doing nothing is always wrong'' standard by requiring prompt
and effective action even if grievance procedures are not initiated by
a complainant or the Title IX Coordinator.
Other commenters opposed the requirement in proposed Sec.
106.44(f)(6) that a Title IX Coordinator take prompt and effective
action to remedy sex discrimination even if a complaint is not filed.
The commenters asserted that this requirement, together with several of
the July 2022 NPRM's other proposed provisions such as the removal of
the ``actual knowledge'' standard and the requirement that non-
confidential employees report conduct that may constitute sex
discrimination to the Title IX Coordinator, would mean that a recipient
would not comply with the Department's Title IX regulations if its
employees failed to take any of the steps the commenters asserted would
be required under the proposed regulations, including the required
action by its Title IX Coordinator.
Discussion: The Department recognizes commenters' concerns that
proposed Sec. 106.44(f)(6) might have obligated a Title IX Coordinator
to take prompt and effective steps to end sex discrimination when on
notice of any conduct that alleged sex discrimination, regardless of
whether the allegations were plausible or credible. As explained in the
discussion of ``conduct that reasonably may constitute sex
discrimination'' above, to address this and similar concerns raised by
commenters, Sec. 106.44(f)(1) of these final regulations will require
a Title IX Coordinator to take the actions set out under paragraphs
(f)(1) when notified of conduct that reasonably may constitute sex
discrimination, and those actions will not be required if the Title IX
Coordinator reasonably determines, pursuant to paragraph (f)(2), that
the conduct as alleged could not constitute sex discrimination under
Title IX or this part. These changes resolve commenters' concerns,
including that proposed Sec. 106.44(f)(6) would have required a Title
IX Coordinator to prevent the recurrence of conduct that did not
plausibly allege sex discrimination or to address under its Title IX
authority alleged sex-based harassment that does not meet the
definition of such conduct under Sec. 106.2. These changes also afford
recipients the flexibility requested by commenters because the changes
recognize a Title IX Coordinator's unique position and expertise and
authorize them to rely on the Title IX Coordinator's specialized
knowledge to assess alleged sex discrimination. These commenters
expressed a preference for greater flexibility over how to respond to
information about conduct that may constitute sex discrimination
outside of their grievance procedures, and the parameters set out under
Sec. 106.44(f)(1) afford sufficient flexibility and discretion while
ensuring satisfaction of Title IX's nondiscrimination mandate. The
Department expects that trained Title IX Coordinators will receive
information about a range of conduct that individuals believe may
reasonably constitute sex discrimination. The Department anticipates
recipients will adequately train their Title IX Coordinators to
distinguish allegations that reasonably may constitute sex
discrimination from allegations that, even if true, could not
constitute sex discrimination, because, for example, they do not
involve different treatment on the basis of sex or sex-based
harassment.
The Department disagrees with commenters' characterization that
proposed Sec. 106.44(f)(6) included unclear requirements and that a
recipient could not know if its Title IX Coordinator's actions complied
with the requirements. Section 106.44(f)(1)(vii) of these final
regulations requires a Title IX Coordinator to take ``other appropriate
prompt and effective steps,'' outside of any remedies provided to an
individual complainant, to ensure an end to sex discrimination in a
recipient's education program or activity that was not addressed
through a recipient's grievance procedures and to prevent its
recurrence. The Department added the phrase ``Regardless of whether a
complaint is initiated'' to final Sec. 106.44(f)(1)(vii) to clarify
that a Title IX Coordinator is required to take action under this
provision even in those circumstances when the Title IX Coordinator is
notified of conduct that reasonably may constitute sex discrimination
under Title IX or these final regulations and determines not to
initiate a complaint under Sec. 106.44(f)(1)(v). When the Title IX
Coordinator is notified of conduct that reasonably may constitute sex
discrimination and does not initiate a complaint, the Title IX
Coordinator must 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.
A prompt and effective response to sex discrimination, as explained
in the discussion of ``action that is `prompt and effective' and
necessary to `remedy the effects' of sex discrimination'' above, is a
standard that is well known to recipients from the 1975 regulations and
the Department's longstanding enforcement of Title IX before the 2020
amendments. The requirement to afford a prompt and effective response
to sex discrimination is also consistent with how some courts have
assessed a recipient's obligation to respond to sexual harassment under
the deliberate indifference standard for private suits seeking monetary
damages. See, e.g., Cianciotto, 600 F. Supp. 3d at 458 (explaining that
the deliberate indifference standard of liability can be shown through
a delayed and inadequate response to harassment) (citing Zeno v. Pine
Plains Cent. Sch. Dist., 702 F.3d 655, 667 n.12, 669-71 (2d Cir. 2012)
(applying Davis to Title VI racial harassment claim and concluding
deliberate indifference can be shown by a recipient's ``lengthy and
unjustifiable delay'' or ``inadequate or ineffective'' response to the
harassment)). Finally, a prompt and effective response to sex
discrimination is consistent with other Federal civil rights statutes
such as Section 504 that are enforced by the Department and require a
similar prompt and effective response to discrimination. See, e.g., 34
CFR 104.7(b).
The Department acknowledges that some commenters opposed proposed
Sec. 106.44(f)(6), which they characterized as requiring a Title IX
Coordinator to undertake an investigation that they asserted would be
contrary to principles
[[Page 33599]]
of basic fairness, would deny respondents due process, and could result
in the provision of supportive measures or imposition of disciplinary
sanctions contrary to Sec. 106.44(g)(2) (explaining that supportive
measures must not unreasonably burden either party) and Sec.
106.45(h)(4) (limiting imposition of disciplinary sanctions until the
conclusion of a recipient's grievance procedures under Sec. 106.45,
and if applicable Sec. 106.46). The Department disagrees with these
assertions, which misstate the function and structure of the Title IX
Coordinator requirements under Sec. 106.44(f) and the requirements of
these final regulations. Contrary to commenters' views, final Sec.
106.44(f)(1)(vii) does not conflict with other provisions of these
final regulations, and a Title IX Coordinator's response to information
about conduct that reasonably may constitute sex discrimination will
not authorize a Title IX Coordinator to circumvent the grievance
procedures requirements set out under Sec. 106.45 or Sec. 106.46.
Nothing in Sec. 106.44(f) will permit a Title IX Coordinator to
provide supportive measures that unreasonably burden any party. Nor
does anything in Sec. 106.44(f) interfere with any party's right to
challenge supportive measures applicable to them under final Sec.
106.44(g)(4). In addition, imposition of disciplinary sanctions will be
permitted only after a recipient complies with the requirements of
Sec. 106.45, and if applicable Sec. 106.46, and nothing in Sec.
106.44(f) indicates otherwise. Moreover, the action a Title IX
Coordinator will be required to take under Sec. 106.44(f)(1)(vii)
would not involve discipline of a respondent; instead, it would involve
other measures, such as educational programming or employee training,
as long as such measures are not imposed for punitive or disciplinary
reasons and are not unreasonably burdensome to a party. As the
Department explained in the discussion of Sec. 106.44(a), above, these
actions are necessary to close the gap in a recipient's required
response to sexual harassment under the 2020 amendments. Under those
amendments, a recipient could have information about possible sex
discrimination in its education program or activity yet have no
obligation to address it beyond providing supportive measures and
information about grievance procedures if (1) the complainant did not
initiate a complaint, and if (2) the Title IX Coordinator did not
exercise the Title IX Coordinator's very limited discretion to do so.
See 85 FR 30131. These final regulations, in contrast, require a Title
IX Coordinator under Sec. 106.44(f)(1)(vii) to take certain actions to
more fully address sex discrimination in such circumstances. The more
limited obligation to respond to sexual harassment outside of a
recipient's grievance procedures under the 2020 amendments failed to
recognize the many other steps available to a recipient, such as
educational programming or employee training, to address sex
discrimination. Depending on the factual circumstances, these steps may
be necessary to fulfill a recipient's Title IX obligation to provide
participants an education program or activity free from sex
discrimination.
The Department strongly disagrees that a Title IX Coordinator's
compliance with Sec. 106.44(f)(1)(vii) will lead to outcomes that do
not comport with the Department's commitment to procedures that are
fair to all. In situations in which a recipient has not initiated its
grievance procedures, the prompt and effective steps that a Title IX
Coordinator may take under Sec. 106.44(f)(1)(vii) are limited to non-
disciplinary action, including for example providing additional
training for employees, educational programming aimed at the prevention
of sex discrimination, or remedies such as permitting a complainant to
retake a class. See 87 FR 41446-47. The Department emphasizes that, if
a Title IX Coordinator determines that the recipient would be required
to impose disciplinary sanctions on a respondent, then the grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, must be
initiated and sanctions may only be imposed if there is a determination
that the respondent violated the recipient's policy prohibiting sex
discrimination. See 87 FR 41447.
The Department also disagrees with commenters' suggestion that a
Title IX Coordinator's compliance with Sec. 106.44(f) could subject
respondents to sex discrimination, which commenters did not support
with additional details, and notes that Sec. 106.31(a)(1) prohibits a
recipient from discriminating against any party based on sex. Anyone
who believes that a recipient's treatment of a complainant or
respondent constitutes sex discrimination may file a complaint with
OCR, which OCR would evaluate and, if appropriate, investigate and
resolve consistent with these regulations' requirement that a recipient
not discriminate against parties based on sex.
The Department agrees with the commenter who stated that in some
cases no response would be required under proposed Sec. 106.44(f)(6).
The same will be true under final Sec. 106.44(f)(1)(vii). The
Department reaffirms the position stated in the July 2022 NPRM that it
will 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. 87 FR 41446. For example,
no additional steps would be necessary 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. Id.
Similarly, a Title IX Coordinator might determine that no additional
steps are necessary to ensure that sex discrimination does not continue
or recur within the recipient's education program or activity if the
complainant has pursued remedies under a collective bargaining
agreement. The Department therefore disagrees with the commenter who
described Sec. 106.44(f) as imposing a ``doing nothing is always
wrong'' standard. Although a recipient would not be in compliance if
its Title IX Coordinator failed to take any of the required steps under
Sec. 106.44(f)(1) of these final regulations, if a Title IX
Coordinator assessed the information it received about possible sex
discrimination in the ways required by these final regulations and
reasonably determined no further action was warranted, a recipient
would be in compliance.
While some commenters correctly asserted that a recipient would not
comply with the Department's Title IX regulations if its Title IX
Coordinator or other employees fail to take actions required under
Sec. 106.44(f)(1), including the requirement to take prompt and
effective action under final Sec. 106.44(f)(1)(vii) and other
provisions of these regulations, the Department disagrees with
commenters' characterization of this as a problem. Expanded reporting
requirements and a greater role for the Title IX Coordinator, as
compared to the 2020 amendments, are necessary in the Department's view
to more effectively ensure that recipients' education programs and
activities are in fact free from discrimination on the basis of sex.
The Department therefore fully expects recipients to comply with these
Title IX regulations, which give recipients sufficient flexibility to
ensure that their Title IX Coordinators and employees are equipped to
do so, including by permitting their Title IX Coordinators to
[[Page 33600]]
delegate duties and by imposing additional training requirements.
Finally, the Department notes that the wording of final Sec.
106.44(f)(1)(vii), which requires a Title IX Coordinator to ``take
other appropriate prompt and effective steps, in addition to steps
necessary to effectuate the remedies provided to an individual
complainant, if any, to ensure that sex discrimination does not
continue or recur within the recipient's education program or
activity,'' differs slightly from proposed Sec. 106.44(f)(6), which
would have required a Title IX Coordinator to ``take other appropriate
prompt and effective steps to ensure that sex discrimination does not
continue or recur within a recipient's education program or activity,
in addition to remedies provided to an individual complainant.'' This
non-substantive change in the structure of this provision clarifies
that whatever actions a recipient's Title IX Coordinator might take
under this provision would be distinct from any relief that a recipient
may have provided to a complainant in connection with a resolved
complaint of sex discrimination.
Changes: The Department has redesignated proposed Sec.
106.44(f)(6) as final Sec. 106.44(f)(1)(vii), and modified the
provision to state that ``[r]egardless of whether a complaint is
initiated,'' a recipient must require its Title IX Coordinator to take
other appropriate prompt and effective steps, ``in addition to steps
necessary to effectuate the remedies provided to an individual
complainant,'' to ensure that sex discrimination does not continue or
recur within the recipient's education program or activity. As
discussed above, the Department has also revised Sec. 106.44(f)(1) of
the final regulations to require a recipient to require its Title IX
Coordinator, when notified of conduct that reasonably may constitute
sex discrimination under Title IX or this part, to take the specific
actions described in paragraph (f)(1) to promptly and effectively end
any sex discrimination in its education program or activity, prevent
its recurrence, and remedy its effects.
Proposed Sec. 106.44(f)(1)-(4)
Comments: One commenter suggested that proposed Sec. 106.44(f)(1),
regarding equitable treatment of the complainant and respondent, would
promote grievance procedures that are more transparent, fair, and
likely to address any harm the parties may experience during the
pendency of the grievance procedures because it would require a Title
IX Coordinator to communicate with the parties equitably. Other
commenters asked whether proposed Sec. 106.44(f)(1) would require a
Title IX Coordinator to treat employee and student respondents
similarly. One commenter asserted that although proposed Sec.
106.44(f)(1) would require a Title IX Coordinator to treat a
complainant and respondent equitably, other provisions in the
Department's proposed regulations appear to favor complainants in
grievance procedures. Some commenters recommended the Department
eliminate proposed Sec. 106.44(f)(1) because it is redundant of
proposed Sec. 106.45(b)(1).
Commenters also offered their views, suggested changes, and
requested clarifications regarding proposed Sec. 106.44(f)(2), which
addresses a Title IX Coordinator's communications with a complainant or
respondent upon learning of conduct that may constitute sex
discrimination under Title IX. For example, some commenters asserted it
would be inequitable for a Title IX Coordinator to notify a complainant
when they receive information about conduct that may constitute sex
discrimination but delay notifying a respondent until a complaint is
made. Other commenters asked whether a Title IX Coordinator may delay
notifying a respondent of a Title IX complaint if there is a concurrent
criminal investigation that could be negatively impacted. Some
commenters asked the Department to clarify whether proposed Sec.
106.44(f)(2) would require a Title IX Coordinator to notify the parent,
legal guardian, or other authorized legal representative of a minor.
One commenter asked the Department to modify proposed Sec.
106.44(f)(2)(i) to require a Title IX Coordinator to provide written
notice of the recipient's grievance procedures as well as notice of any
option for informal resolution before a complaint investigation is
begun. According to the commenter, including this information on a
recipient's website is inadequate because links often break or change.
Commenters expressed support for the Title IX Coordinator's duty to
offer and coordinate supportive measures under proposed Sec.
106.44(f)(3) because it would promote early intervention, encourage
more support for individuals harmed by sex discrimination, and provide
resources to change the behavior of individuals accused of sex
discrimination; ensure that students who report sex discrimination are
informed of available supportive measures; ensure equitable support for
complainants and respondents; and address what some commenters
characterized as the inadequacy of the 2020 amendments' response to
information about conduct that may constitute sex discrimination.
Other commenters expressed a preference for the approach in Sec.
106.44(a) of the 2020 amendments, which requires a Title IX Coordinator
to provide information about supportive measures to a complainant upon
learning of possible sex discrimination. One commenter objected to
requiring the Title IX Coordinator to offer supportive measures to a
respondent because doing so presumes that a respondent is entitled to
such measures. One commenter suggested the Department retain the
current regulations' requirement that a recipient investigate each
complaint it receives because, in the commenter's view, the approach
adopted in the 2020 amendments is a more protective framework than
proposed Sec. 106.44(f)(4). Some commenters expressed concern that
proposed Sec. 106.44(f)(3) would allow a Title IX Coordinator to offer
a complainant supportive measures that would be burdensome to a
respondent prior to a finding of responsibility and objected to
treating a complainant and respondent differently with respect to the
timing of offering supportive measures. Commenters also asked the
Department to modify proposed Sec. 106.44(f)(3) to state a recipient
is required to offer supportive measures to the complainant and/or the
respondent.
One commenter asserted that proposed Sec. 106.44(f)(4), which
would require a Title IX Coordinator to initiate a recipient's
grievance procedures or informal resolution process in response to a
complaint, is unnecessary because proposed Sec. Sec. 106.45 and 106.46
contain applicable requirements.
Discussion: The Department acknowledges commenters' support for
proposed Sec. 106.44(f)(1), which is included as Sec. 106.44(f)(1)(i)
of the final regulations, and affirms that equitable treatment of a
complainant and a respondent will encompass communications with both
parties, as warranted, to provide important information about a
recipient's Title IX policies and obligations as well as available
resources and supports. The Department disagrees that Sec.
106.44(f)(1)(i) is redundant of the similar requirement in Sec.
106.45(b)(1), which is limited to the basic requirements for a
recipient's grievance procedures; Sec. 106.44(f)(1)(i), in contrast,
applies to a Title IX Coordinator's obligations in response to
information about conduct that reasonably may constitute sex
discrimination, including in situations that arise outside of or
precede a recipient's grievance procedures.
[[Page 33601]]
Section 106.44(f)(1)(i) of the final regulations will not require a
recipient to treat employee and student respondents similarly or favor
complainants in a recipient's grievance procedures, as some commenters
suggested. The requirement of equitable treatment in Sec.
106.44(f)(1)(i) applies to the complainant and respondent and does not
address more generally the relationship of parties to the recipient--
for example as an employee, student-employee, or student. And the
Department strongly disagrees with commenters' assertion that the
requirements under Sec. Sec. 106.45 and 106.46 favor complainants. For
more explanation of the fair procedures afforded to all parties under
each of the applicable provisions, see the discussion of the Framework
for Grievance Procedures for Complaints of Sex Discrimination (Section
II.C).
Further, delaying when a Title IX Coordinator notifies a respondent
of a recipient's grievance procedures until a complaint is initiated
would not be inequitable to a respondent as some commenters asserted. A
recipient must provide broad notice of its grievance procedures under
Sec. 106.8(b)(2), and the Department continues to believe that
providing information about a recipient's grievance procedures to a
respondent at the time a Title IX Coordinator oversees initiation of
the grievance procedures under Sec. 106.44(f)(1)(iii)(B) is adequate
to apprise a respondent of the grievance procedures and the rights they
afford. See 87 FR 41444. Additional discussion of equitable treatment
of the parties to a recipient's grievance procedures, including student
and employee respondents, is provided in the preamble discussion of
Sec. 106.45(b)(1) of the final regulations.
In response to commenters who asked whether a recipient may delay
notifying a respondent of a Title IX complaint in circumstances when a
concurrent criminal investigation is underway, the Department clarifies
that such delays are not required under Sec. Sec. 106.45(b)(4) and
106.46(e)(5), which allow a reasonable extension of timeframes on a
case-by-case basis for good cause, but that the possibility of a
concurrent law enforcement investigation in certain circumstances could
justify such a delay, depending on the circumstances. Further, nothing
in final Sec. 106.44(f)(1)(iii) or (iv), which require a Title IX
Coordinator to notify the parties of a recipient's grievance procedures
and informal resolution process if available and appropriate, and to
initiate those procedures or informal resolution process if requested
by all parties, will preclude a recipient from requiring its Title IX
Coordinator to provide a respondent with that information in writing,
if the complainant pursues an informal resolution process or the Title
IX Coordinator initiates a complaint, as requested by one commenter.
However, the Department declines to require all recipients to require
such written communication. The Department appreciates the opportunity
to clarify that if a recipient only provides the required information
through links to web pages that do not work, it does not satisfy its
obligation under final Sec. 106.44(f)(1)(iii)(B) to notify a
respondent, if a complaint is made, of the recipient's grievance
procedures or an informal resolution process if available and
appropriate.
In response to commenters' questions about a Title IX Coordinator's
duty to notify the parents of minors of a recipient's grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, upon
receiving information about possible sex discrimination, the Department
appreciates the opportunity to reiterate that nothing in final Sec.
106.44(f)(1)(iii), which addresses notification of a recipient's
grievance procedures, or any other provision of these final
regulations, derogates any legal right of a parent, guardian, or other
authorized legal representative (e.g., a court-appointed educational
representative or a court-appointed decisionmaker) to act on behalf of
a complainant, respondent, or other person. See Sec. 106.6(g). To the
extent commenters are asking the Department to clarify in the final
regulations that a recipient's Title IX Coordinator must notify the
parents of a minor when the Title IX Coordinator receives information
about possible sex discrimination, the Department notes that such a
duty would arise under State or local law or school policy and is not
required under these final regulations.
In addition, the Department has further clarified the notification
requirements in final Sec. 106.44(f)(1)(iii)(A), which will require
the Title IX Coordinator to notify the complainant or, if the
complainant is unknown, the individual who reported the conduct, about
the recipient's grievance procedures and the availability of an
informal resolution process if available and appropriate. The
Department indicated in the July 2022 NPRM that, under the proposed
regulations, when a Title IX Coordinator does not know the identity of
the complainant, the Title IX Coordinator would be permitted to provide
information about the recipient's grievance procedures to the
individual, if any, who reported the conduct. 87 FR 41444. In its
enforcement experience, the Department frequently observed that a
complainant is unknown or unidentified at the time information is
reported to a Title IX Coordinator, such as when a witness to sexual
assault reported the incident but does not know the name of the person
who was assaulted. To ensure information is conveyed to an individual
who may be in a better position to identify the complainant and provide
them the required information, the Department determined that it is
necessary to include this information in these final regulations.
With respect to offers and coordination of supportive measures, the
Department agrees with commenters who supported proposed Sec.
106.44(f)(3) because it would strengthen a recipient's response to
notice of possible sex discrimination, as compared to Sec. 106.44(a)
in the 2020 amendments, by requiring a Title IX Coordinator to do more
than offer supportive measures to a complainant. The Department
maintains that basic commitment in these final regulations and has
modified proposed Sec. 106.44(f)(3) to clarify recipient and Title IX
Coordinator obligations. Thus, final Sec. 106.44(f)(1)(ii) clarifies
that a recipient must require its Title IX Coordinator to offer and
coordinate supportive measures, as appropriate, for the complainant
upon notice of information that reasonably may constitute sex
discrimination; and do so for a respondent upon the recipient's
initiation of grievance procedures or offer to a respondent of an
informal resolution process. The Department shares commenters'
assessment that such a requirement will promote an early response to
possible sex discrimination, afford necessary support to the
individuals impacted by possible sex discrimination, and afford
resources that seek to prevent future incidents of possible sex
discrimination for complainants and respondents.
The Department strongly disagrees with some commenters' suggestion
that proposed Sec. 106.44(f)(3) would presume that a respondent
requires supportive measures that they may not be entitled to receive.
With respect to supportive measures, the preamble discussion of Sec.
106.44(g) provides the Department's rationale for requiring a
recipient, through its Title IX Coordinator, to offer and coordinate
supportive measures to a respondent under final Sec. 106.44(f)(1)(ii).
However, to provide greater clarity on what the Department meant by
``as appropriate'' with respect to offering and coordinating supportive
[[Page 33602]]
measures for a respondent, the Department changed that requirement in
final Sec. 106.44(f)(1)(ii) to align the offer and coordination of
supportive measures to a respondent with the time when the Title IX
Coordinator initiates the recipient's grievance procedures or offers an
informal resolution process to the respondent. The final regulations
delay the offer of supportive measures to a respondent until a
recipient has initiated grievance procedures or notified the respondent
of the availability of an informal resolution process to avoid
prematurely notifying the respondent before the complainant has decided
whether to make a complaint. The Department also clarified final Sec.
106.44(f)(1)(iv), referencing final Sec. 106.44(k), to state that
informal resolution would only be initiated if available, appropriate,
and requested by all parties. In addition, the Department streamlined
the language regarding supportive measures in final Sec.
106.44(f)(1)(ii) because the definition of supportive measures itself
indicates that they are for the purpose of restoring a party's access
to the recipient's education program or activity. Further, the
discussion of Sec. 106.44(g)(2) below addresses commenters' concerns
about a Title IX Coordinator's offer and coordination of supportive
measures to a party and ensures that no supportive measures are
provided that would unreasonably burden either party.
With respect to initiation of grievance procedures or informal
resolution processes, the Department has incorporated proposed Sec.
106.44(f)(4) into final Sec. 106.44(f)(1)(iv), with the modification
regarding informal resolution noted above. The Department disagrees
with one commenter's assertion that proposed Sec. 106.44(f)(4) would
have afforded a less protective framework than Sec. 106.44(a) in the
2020 amendments, which the commenter stated would better prevent a
recipient from avoiding its Title IX obligations. For the reasons
explained in the discussion of Sec. 106.44(a) and throughout this
discussion of Sec. 106.44(f), the Department agrees with other
commenters who viewed the provisions of proposed Sec. 106.44(f) as
affording a stronger, more comprehensive response to possible sex
discrimination than what is afforded under Sec. 106.44(a) in the 2020
amendments and its adapted deliberate indifference standard. The
Department also declines to remove proposed Sec. 106.44(f)(4) from
these final regulations because it disagrees that this provision is
duplicative of the applicable complaint initiation requirements under
the grievance procedures requirements set out under Sec. Sec. 106.45
and 106.46. The grievance procedures requirements apply only after a
complaint is initiated. To determine when to initiate a complaint,
however, the Title IX Coordinator must first take the actions set out
under Sec. 106.44(f)(1)(i)-(iii) of these final regulations. If, after
taking those actions, the Title IX Coordinator learns that a
complainant wishes to initiate a complaint, then Sec. 106.44(f)(1)(iv)
directs the Title IX Coordinator to initiate grievance procedures in
accordance with Sec. 106.45, and if applicable Sec. 106.46. Further,
in the event of a Title IX Coordinator-initiated complaint under Sec.
106.44(f)(1)(v), a Title IX Coordinator would also be required to
provide a respondent information about the recipient's grievance
procedures and informal resolution process, if available and
appropriate, under Sec. 106.44(f)(1)(iii)(B).
In response to requests for supplemental guidance and technical
assistance on the scope of the Title IX Coordinator role and any of the
role's specific requirements, the Department agrees that supporting
recipients and Title IX Coordinators in implementing these regulations
is important. The Department will offer technical assistance, as
appropriate, to promote compliance with these final regulations.
Changes: The Department has reorganized several of the provisions
in proposed Sec. 106.44(f)(1)-(6) into paragraphs (f)(1)(i)-(vii) of
the final regulations. Paragraph (f)(1)(ii) will require a Title IX
Coordinator to offer and coordinate supportive measures under Sec.
106.44(g), if appropriate, for a complainant upon being notified of
conduct that reasonably may constitute sex discrimination and to offer
and coordinate supportive measures for a respondent if the recipient
has initiated grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, or has offered the respondent an informal
resolution process under Sec. 106.44(k). Under paragraph
(f)(1)(iii)(A), when a complainant is unknown, the Title IX Coordinator
will be required to notify the individual who reported conduct that
reasonably may constitute sex discrimination of the grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, and the
informal resolution process under Sec. 106.44(k), if available and
appropriate. And a Title IX Coordinator will be required under
paragraph (f)(1)(iii)(B) to notify a respondent of grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46, and the informal
resolution process under Sec. 106.44(k), if available and appropriate,
if a complaint is made. Paragraph (f)(1)(iv) will require a Title IX
Coordinator to initiate a recipient's informal resolution process under
Sec. 106.44(k) if available and appropriate and requested by all
parties.
7. Sections 106.44(g) and 106.2 Supportive Measures and Definition of
``Supportive Measures''
Definition of Supportive Measures (Sec. 106.2)
Comments: One commenter supported the proposed definition of
``supportive measures'' because it would allow a recipient to provide
non-disciplinary, non-punitive measures to potential complainants who
may not want to initiate Title IX grievance procedures and would allow
these complainants continued access to education without unreasonably
burdening the respondent.
One commenter opposed the proposed definition of ``supportive
measures'' and urged the Department to keep the definition in the 2020
amendments, on the ground that it correctly balances the need to
support a complainant with the need to ensure that a respondent is not
punished until found responsible. Some commenters opposed the language
in the definition of ``supportive measures'' because they argued that
the standard is different from the standard articulated for burdensome
supportive measures in proposed Sec. 106.44(g)(2). One commenter
requested the Department use the term ``equitable interim measures''
rather than ``supportive measures.'' One commenter requested the
Department revise the definition to state that supportive measures are
offered, as appropriate, ``before or after the filing of a formal
complaint or where no formal complaint has been filed.'' One commenter
asked the Department to clarify who a ``party'' is in the definition of
supportive measures in Sec. 106.2.
Discussion: The Department acknowledges commenters' support for the
definition of ``supportive measures.'' The Department declines to
retain the definition of ``supportive measures'' in the 2020 amendments
for the reasons discussed in the July 2022 NPRM and herein. The final
definition maintains the intent of the definition in the 2020
amendments with revisions to increase clarity and to better align with
Sec. 106.44(g) and the other final regulations. See 87 FR 41421. The
definition of ``supportive measures'' in the final regulations balances
the need to support a complainant with the need to ensure that a
respondent is not disciplined unless and until found responsible. While
the definition of
[[Page 33603]]
``supportive measures'' permits supportive measures that do not
unreasonably burden a complainant or respondent, a recipient is not
required to provide such measures and many supportive measures will not
burden a party at all. All supportive measures are subject to the
limits set forth in Sec. 106.44(g)(2), may be challenged under Sec.
106.44(g)(4), and may not be imposed for punitive or disciplinary
reasons. Additionally, after careful consideration of the comments, the
Department has deleted the language ``deter the respondent from
engaging in sex-based harassment'' from the definition of ``supportive
measures'' to avoid any suggestion that a recipient should make a
preliminary determination as to whether a respondent has engaged in
sex-based harassment when considering what supportive measures to offer
to a complainant.
As discussed in more detail below, the Department has revised the
definition of supportive measures to remove ``temporary measures that
burden a respondent that are designed to protect the safety of the
complainant'' and made conforming edits to Sec. 106.44(g)(2). The
Department has replaced this language with a reference to ``measures
that are designed to protect the safety of the parties.'' These changes
were made to avoid any implication of bias against respondents in the
provision of supportive measures. The Department notes that, consistent
with the definition of ``supportive measures'' in the 2020 amendments,
this change does not mean that a supportive measure provided to one
party cannot impose any burden on the other party; rather, the
definition of ``supportive measures'' specifies that supportive
measures cannot impose an unreasonable burden on the other party. 85 FR
30181. The definition of ``supportive measures'' and Sec. 106.44(g)(2)
continue to permit a recipient to provide a wide range of supportive
measures intended to meet any of the purposes stated in the definition,
including to restore or preserve equal access to education, protect
safety, or provide support during a recipient's grievance procedures or
informal resolution process, as long as such measures are not
unreasonably burdensome and are not imposed for punitive or
disciplinary reasons.
By removing the word ``temporary'' from the definition, the
Department acknowledges that some supportive measures may not be
temporary, such as a voluntary housing relocation. A recipient is in
the best position to determine the appropriate length of time for any
given supportive measure. Sections 106.44(g)(3) and (4) permit a
recipient to modify or terminate supportive measures as appropriate and
provide parties with the ability to seek modification or termination of
supportive measures when a party believes a supportive measure does not
meet the definition of ``supportive measures'' in Sec. 106.2 or when
circumstances have changed materially, such as where there has been a
finding of non-responsibility following a grievance procedure under
Sec. 106.45, or if applicable Sec. 106.46.
The Department also acknowledges commenters' confusion about
perceived differences in the requirements articulated in the definition
of ``supportive measures'' in proposed Sec. 106.2 and the standard set
forth in proposed Sec. 106.44(g)(2). Although the Department intended
the definition of ``supportive measures'' and proposed Sec.
106.44(g)(2) to establish the same requirements for supportive
measures, the Department understands how the different terminology
could cause confusion. The Department has revised the definition of
``supportive measures'' in final Sec. 106.2 to align with the language
in Sec. 106.44(g)(2), stating that such measures must not be imposed
``for punitive or disciplinary reasons.'' This change is intended to
clarify that, for example, while a recipient may utilize actions such
as no-contact orders as supportive measures even if they may also be
imposed as or accompany a disciplinary sanction under the recipient's
disciplinary code at the conclusion of the grievance procedures, such
supportive measures cannot be imposed for punitive or disciplinary
reasons.
In addition, the Department has modified proposed Sec.
106.44(g)(2) to include language in the final provision that states
that supportive measures must not unreasonably burden a complainant or
a respondent and must be designed to protect the safety of the parties
or the recipient's educational environment.
The Department declines to replace the term ``supportive measures''
with ``equitable interim measures.'' The term ``supportive measures''
accurately reflects the types of measures available to both respondents
and complainants, which may be provided even if a complainant chooses
not to move forward with a complaint or after a complaint is dismissed
and which are not limited to the pendency of a grievance procedure. See
Sec. 106.44(f)(1)(ii), (g)(3). The Department also declines to add
information to the definition of ``supportive measures'' about when
supportive measures are available as this procedural information is
already contained in Sec. 106.44(f)(1)(ii) and (g)(2)-(3).
In consideration of commenter concerns about who is a ``party''
under the definition of ``supportive measures,'' the Department notes
that it has added a definition to Sec. 106.2 to clarify that ``party''
means a complainant or respondent. Additionally, for clarity in this
specific context, the Department has modified the definition of
``supportive measures'' to state that supportive measures mean
individualized measures offered as appropriate, as reasonably
available, without unreasonably burdening a ``complainant or
respondent.''
Changes: The Department has replaced the phrase ``a party'' in the
introductory paragraph of the definition of ``supportive measures''
with ``a complainant or respondent.'' Consistent with the changes made
to Sec. 106.44(g)(2), as discussed below, the Department has deleted
``non-disciplinary, non-punitive'' from the introductory paragraph of
the definition of ``supportive measures,'' replaced it with ``not for
punitive or disciplinary reasons,'' and moved the reference after the
phrase ``without unreasonably burdening a complainant or respondent.''
The Department has also removed the reference to non-punitive and non-
disciplinary reasons from paragraph (1) of the definition, deleted
``temporary measures that burden a respondent that are designed to
protect the safety of the complainant'' and replaced it with ``measures
that are designed to protect the safety of the parties,'' and deleted
the language ``or deter the respondent from engaging in sex-based
harassment'' from the definition of ``supportive measures'' in Sec.
106.2.
Responsibility To Offer and Coordinate Supportive Measures (Sec.
106.44(g) and 106.44(g)(6))
Comments: Many commenters expressed support for proposed Sec.
106.44(g) because it would allow complainants to continue accessing
their education during the pendency of the grievance procedures,
protect complainants by not forcing them to sacrifice their educational
experience, help protect against peer retaliation, and address the
history of complainants not receiving the support they need. Some
commenters supported proposed Sec. 106.44(g) because it would expand
the requirement to offer supportive measures to individuals who
experience any form of sex discrimination, while other commenters
valued offering supportive measures to individuals who
[[Page 33604]]
report sex-based harassment even if they do not pursue resolution
through the recipient's Title IX grievance procedures or informal
resolution, or if their complaint is dismissed. Other commenters
appreciated the flexibility in proposed Sec. 106.44(g) with respect to
offering supportive measures. Several commenters supported proposed
Sec. 106.44(g) because it would create a more streamlined process with
uniform standards that would help to ensure the timely resolution of
complaints.
Other commenters interpreted proposed Sec. 106.44(g) and (g)(6) as
limiting the ability to offer and coordinate supportive measures to a
Title IX Coordinator, which commenters asserted would be burdensome for
a Title IX Coordinator and would restrict a recipient's flexibility to
involve other employees and administrators in the offering and
coordination of supportive measures. One commenter stated that K-12
school districts typically rely on many employees to provide supportive
measures, including counselors, assistant principals, and support staff
with mental health training, and requested that a recipient have the
flexibility to designate multiple staff to offer and coordinate such
measures. Another commenter recommended that proposed Sec.
106.44(g)(6) be modified to require a Title IX Coordinator to oversee
and coordinate, but not necessarily offer, supportive measures.
Other commenters stated that confidential employees, not Title IX
Coordinators, should be responsible for offering and coordinating
supportive measures. One commenter expressed concern about a potential
chilling effect by locating confidential resources within the Title IX
office or otherwise requiring students to seek supportive measures from
the Title IX office. Another commenter raised concerns that records
that would be kept by the Title IX Coordinator under the proposed
regulations could, by risking disclosure, endanger students who seek
supportive services. Commenters asserted that confidential employees or
campus advocates are better equipped to provide supportive measures
because, for example, students do not trust campus administrators and
Title IX Coordinators are not trained to provide emotional support. One
commenter noted that some State laws now direct that confidential
employees have the authority to offer and coordinate supportive
measures.
Several commenters raised concerns about the timing and scope of
supportive measures offered under proposed Sec. 106.44(g). For
example, one commenter stated that supportive measures should be
provided to all complainants and respondents regardless of whether
grievance procedures are initiated and should be continued after
grievance procedures are complete if necessary to restore or preserve a
party's access to the recipient's education program or activity.
Another commenter asked the Department to allow supportive measures for
any community member engaged in grievance procedures, but did not
explain further what they meant, and suggested that a recipient be
allowed to consider not only the safety of the complainant but the
safety of the broader community. One commenter recommended that a
recipient be required to offer supportive measures only for sex-based
harassment and not sex discrimination more broadly. One commenter asked
the Department to clarify how coordination and implementation of
supportive measures should be handled when a student discloses sex-
based harassment to a confidential employee and not a Title IX
Coordinator.
Several commenters requested that the Department require a
recipient to publish additional information about supportive measures,
to make information available in different formats and languages, and
to require a recipient to work with its Principal Designated School
Officials \37\ to make sure that international students have access to
supportive measures and understand how supportive measures may impact
their immigration status.
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\37\ See 8 CFR 214.3(l)(1).
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Discussion: The Department agrees that Sec. 106.44(g) will provide
a recipient flexibility in offering supportive measures while also
restoring and preserving access to a recipient's education program or
activity.
The Department understands that some commenters interpreted
proposed Sec. 106.44(g) and (g)(6) to permit only a Title IX
Coordinator to offer and coordinate supportive measures. The Department
appreciates this opportunity to clarify that while a recipient must
continue to require its Title IX Coordinator to offer and coordinate
supportive measures under Sec. Sec. 106.44(f)(1)(ii) and 106.8(a) of
these final regulations permits a recipient to designate more than one
employee to serve as a Title IX Coordinator and also provides a
recipient or Title IX Coordinator with the flexibility and discretion
to delegate specific duties of the Title IX Coordinator to one or more
designees. Permission to delegate responsibilities to designees enables
a recipient to assign duties to personnel who are best positioned to
perform them, such as campus personnel with a close relationship with
students; to avoid actual or perceived conflicts of interest; and to
align with the recipient's administrative structure. Thus, although the
final regulations require one Title IX Coordinator to retain ultimate
oversight over a recipient's Title IX responsibilities, including
oversight over the offering and coordination of supportive measures,
nothing in the final regulations otherwise restricts how the duties of
offering and coordinating supportive measures may be assigned to other
personnel and the Department recognizes that some recipients may find
it helpful to delegate certain duties related to the provision of
supportive measures.
The Department acknowledges that some commenters would prefer for
confidential employees to be responsible for supportive measures and
recognizes the support that confidential employees often offer to
complainants and respondents. While the Department agrees that
confidential employees may play a role in the implementation of
supportive measures, for example by providing counseling services, the
Department declines to require confidential employees to be responsible
for offering and coordinating supportive measures. The provision of
supportive measures is part of a recipient's responsibilities under
Title IX. As confidential employees must keep the information they
receive confidential, they are not well situated to be responsible for
offering and coordinating the provision of supportive measures through
other offices or individuals on behalf of the recipient. Therefore, the
final regulations require a recipient to ensure that its Title IX
Coordinator is responsible for coordinating the recipient's compliance
with its obligations under Title IX, including the obligation to offer
and coordinate supportive measures under Sec. 106.44(g). See
Sec. Sec. 106.8(a), 106.44(f)(1)(ii). With respect to State laws that
may permit confidential employees to offer and coordinate supportive
measures, the obligation to comply with Title IX and the final
regulations is not obviated or alleviated by any State or local law or
other requirement that conflicts and a recipient must comply with Title
IX and the final regulations even if that means the recipient will not
receive the full benefit of such State laws. See Sec. Sec. 106.6(b),
106.44(d)(2).
The Department also reiterates that the recipient itself is
responsible for compliance with obligations under Title IX, including
any responsibilities
[[Page 33605]]
specifically assigned to the recipient's Title IX Coordinator under
these final regulations, and the Department will hold the recipient
responsible for meeting all obligations under these final regulations.
To further clarify the recipient's ultimate responsibility for Title IX
compliance and address commenters misunderstandings, the Department has
revised Sec. 106.44(g) to state that a recipient must offer and
coordinate supportive measures, as appropriate. Additionally, the
Department is persuaded that changes should be made to clarify and
simplify the language in Sec. 106.44, particularly in proposed Sec.
106.44(f) and (g). To do so, the Department has deleted proposed Sec.
106.44(g)(6) as redundant of final Sec. 106.44(f)(1)(ii) and instead
included a reference directly to final Sec. 106.44(f) in Sec.
106.44(g).
The Department also appreciates the opportunity to clarify that
supportive measures must be offered to complainants, as appropriate,
regardless of whether grievance procedures are initiated. For example,
supportive measures must be offered to a complainant, as appropriate,
when a complainant elects to pursue an informal resolution process or
not to initiate grievance procedures. See Sec. 106.44(f)(1)(ii). As
indicated in the July 2022 NPRM, supportive measures may also be
offered to a respondent. See, e.g., 87 FR 41421. But because a
respondent will not always receive notice of a complaint if a
complainant elects not to move forward with grievance procedures, the
Title IX Coordinator must offer supportive measures to a respondent, as
appropriate, only if grievance procedures have been initiated or an
informal resolution process has been offered. See Sec.
106.44(f)(1)(ii); 87 FR 41448. Additionally, as discussed below in
relation to Sec. 106.45(d)(4)(i), even if a recipient elects to
dismiss a complaint of sex discrimination because, for example, the
recipient is unable to identify the respondent after taking reasonable
steps to do so, the recipient must, as appropriate, still offer
supportive measures to the complainant, such as counseling.
The Department declines to limit supportive measures to sex-based
harassment. As discussed in the July 2022 NPRM, a recipient has an
obligation under Title IX to address all forms of sex discrimination,
including ensuring that access to the recipient's education program or
activity is not limited by such sex discrimination. See, e.g., 87 FR
41405. Supportive measures are designed to restore or preserve a
party's access to the recipient's education program or activity and the
need for such support is not limited to sex-based harassment. 87 FR
41421. As such, supportive measures are available for all forms of sex
discrimination, which is consistent with the proposed definition of
``supportive measures'' in Sec. 106.2 and with Sec. 106.44(a). 87 FR
41448. The Department also declines to require a recipient to offer
supportive measures to every community member engaged in grievance
procedures as this would be burdensome on a recipient. The Department
notes that nothing in these final regulations prevents a recipient from
offering supportive measures in circumstances not required by these
regulations. In addition, to the extent a person other than the
complainant who is participating or attempting to participate in a
recipient's education program or activity when sex discrimination
occurred also had their access to the education program or activity
limited or denied as a result of that sex discrimination, that person
may be able to receive remedies as appropriate under Sec. 106.45(h)(3)
if there is a determination that sex discrimination occurred.
In response to commenters' requests that a recipient be allowed to
consider not only the safety of the parties but the safety of the
broader community, the Department notes that the definition of
``supportive measures'' and Sec. 106.44(g)(2) permits a recipient to
consider supportive measures designed to protect the safety of the
recipient's educational environment and Sec. 106.44(h) allows a
recipient to take into account the safety of the campus community when
conducting a safety and risk analysis.
In response to commenter concerns about how to coordinate
supportive measures when a student discloses sex-based harassment to a
confidential employee, the Department clarifies that when a person
informs a confidential employee of conduct that reasonably may
constitute sex discrimination under Title IX, Sec. 106.44(d)(2)(ii)
and (iii) require that the confidential employee explain how to contact
the recipient's Title IX Coordinator and that the Title IX Coordinator
may be able to offer and coordinate supportive measures, as well as
initiate an informal resolution process or an investigation under the
grievance procedures.
Further, the Department declines to require recipients to publish
additional information about supportive measures, provide information
about supportive measures in a particular format, or require a
recipient to work with Principal Designated School Officials in
offering supportive measures. The Department has determined that Sec.
106.44(g) strikes the appropriate balance between requiring a recipient
to offer and coordinate supportive measures while providing a recipient
with flexibility to choose how to meet this requirement in a way that
best serves the needs of its community. Nothing within these final
regulations prevents a recipient from choosing to publish additional
information about supportive measures or from coordinating with other
administrators or offices to ensure all members of a recipient's
educational community have access to information concerning supportive
measures, assuming such efforts otherwise comply with the requirements
of these regulations. See Sec. 106.8(c)(1).
In response to a commenter's concern about privacy around records
related to supportive measures, see the discussion of Sec.
106.44(g)(5) and (j).
Changes: To clarify and simplify the language in Sec. 106.44 and
further clarify the recipient's ultimate responsibility for Title IX
complaints, Sec. 106.44(g) has been revised to change ``would'' to
``does,'' add ``any'' before ``other person,'' and specify that, under
paragraph (f) of Sec. 106.44, a recipient must offer and coordinate
supportive measures, as appropriate, as described by the remainder of
the provision. The Department has also deleted proposed Sec.
106.44(g)(6).
Types of Supportive Measures (Sec. 106.44(g)(1))
Comments: Some commenters supported the examples of supportive
measures provided in proposed Sec. 106.44(g)(1) but requested that the
Department expand the list of examples. Commenters suggested additional
examples, including: allowing resubmission of an assignment or to
retake an exam, adjusting a complainant's grades or transcript,
independently re-grading the complainant's work, preserving a
complainant's eligibility for a scholarship, honor, extracurricular, or
leadership position, and reimbursing tuition or providing a tuition
credit; medical and psychological services including free mental health
support; complainant advocacy; changes related to transportation;
removal of a respondent from participation on a school athletic team;
trauma-informed care; access to a specialized social worker; accessible
emergency housing (including housing that is safe for transgender and
gender nonconforming students); assistance with breaking off-campus
leases to access school-provided emergency housing; waiver of lease
[[Page 33606]]
breakage fees for school-owned housing; and assistance with reasonable
moving expenses for moving to emergency housing. One commenter
requested that the Department clarify in proposed Sec. 106.44(g)(1)
that supportive measures do not include involuntary changes to a
complainant's schedule.
Some commenters requested that the Department add examples of
additional supportive measures for respondents. These commenters stated
that support for respondents would not only help to restore and
preserve a complainant's access to a recipient's education program or
activity but also prevent future sex-based harassment.
Several commenters asked the Department to clarify that supportive
measures may include retroactive measures necessary to address harms
that complainants have already experienced. One commenter noted that
many complainants do not report sex-based harassment immediately after
it occurs and may experience the negative academic impacts of such
harassment prior to reporting, such as missed exams or failed classes.
The commenter stated that supportive measures should include measures
to undo these academic impacts.
Some commenters expressed a variety of opinions on the inclusion of
restrictions on contact in proposed Sec. 106.44(g)(1). Some commenters
opposed the use of any type of no-contact order as a supportive
measure, stating that no-contact orders are a prior restraint on
speech. Other commenters asked the Department to expressly prohibit
mutual no-contact orders, which one commenter suggested are easily
abused and are only appropriate when both parties have been accused of
misconduct towards each other. Several commenters asked the Department
to explicitly state in the final regulations that a recipient is
permitted to impose a non-mutual no-contact order against a respondent.
Other commenters opposed the inclusion of non-mutual no-contact orders
as supportive measures stating that they are highly susceptible to
abuse. Some commenters asked the Department to clarify that proposed
Sec. 106.44(g)(1) would allow a recipient to impose a non-mutual no-
contact order or a mutual no-contact order, depending on what is
reasonable under the circumstances.
Some commenters requested that the Department clarify that a
recipient is required to provide a supportive measure if the supportive
measure is reasonably available. These commenters expressed concern
about a recipient refusing to provide supportive measures to
complainants even when requests for supportive measures were
reasonable.
One commenter asked the Department to clarify whether ``involuntary
changes in work'' refers to changes in work parameters or removal of
work.
Discussion: The Department acknowledges commenters' views on the
examples of supportive measures in proposed Sec. 106.44(g)(1) as well
as suggestions for the additional examples noted above. After careful
consideration, the Department has determined that final Sec.
106.44(g)(1) strikes the appropriate balance between providing
illustrative examples of supportive measures to assist a recipient in
determining appropriate supportive measures, while leaving a recipient
with as much flexibility and discretion as possible to determine
reasonably available supportive measures for their educational
community. As discussed in the July 2022 NPRM, while a recipient has
substantial discretion over the supportive measures it offers, such
discretion is limited by the requirement to offer supportive measures
only as appropriate to restore or preserve the party's access to the
recipient's education program or activity or provide support during the
grievance procedures and not for disciplinary or punitive reasons. 87
FR 41448. The Department agrees that there may be circumstances in
which supportive measures for respondents, such as counseling, support
groups, or specialized training, if reasonably available, can be
appropriate to restore or preserve a party's access to the recipient's
education program or activity. The Department also agrees that there
may be supportive measures that apply retroactively, such as
retroactive withdrawals, extensions of deadlines, adjustments to
transcripts, or tuition reimbursements, that, if reasonably available,
can be appropriate to restore or preserve a party's access to the
recipient's education program or activity.
The Department also acknowledges commenters' views on no-contact
orders, including non-mutual no-contact orders and mutual no-contact
orders. As discussed in the July 2022 NPRM, the Department proposed
eliminating the term ``mutual'' from the non-exhaustive list of
supportive measures under Sec. 106.44(g)(1) to ensure that a recipient
understands that it is not limited to imposing mutual restrictions on
contact between the parties as supportive measures. 87 FR 41450. After
careful consideration of the comments, the Department has made further
modifications to the language in Sec. 106.44(g)(1) to address
continued commenter confusion about whether mutual and non-mutual no-
contact orders are permitted as supportive measures. The Department has
changed ``restrictions on contact between the parties'' to
``restrictions on contact applied to one or more parties.'' This will
further clarify that a recipient may apply mutual or non-mutual no-
contact orders to complainants and/or respondents as supportive
measures.
The Department also disagrees that no-contact orders are highly
susceptible to abuse and notes that commenters provided no evidence for
such an assertion. The Department reiterates that, as with other
supportive measures, a recipient may consider the appropriateness of
restrictions on contact in light of factors such as those described in
the July 2022 NPRM, including the need expressed by the complainant or
respondent; the ages of the parties involved; the nature of the
allegations and their continued effects on the complainant or
respondent; whether the parties continue to interact directly in the
recipient's education program or activity, including through student
employment, shared residence or dining facilities, class, or campus
transportation; and whether steps have already been taken to mitigate
the harm from the parties' interactions, such as implementation of a
civil protective order. 87 FR 41448. In considering whether to provide
a no-contact order, a recipient must also ensure that a no-contact
order is not imposed for punitive or disciplinary reasons and does not
unreasonably burden a complainant or a respondent.
The Department disagrees that a no-contact order constitutes an
impermissible ``prior restraint'' on speech. The Supreme Court has
cautioned that a content-neutral injunction that incidentally affects
expression is not a ``prior restraint'' when the enjoined party has
access to alternative avenues of expression. Madsen v. Women's Health
Ctr., 512 U.S. 753, 763 n.2 (1994). Moreover, even when such an order
restricts access to a public forum, it is constitutionally permissible
if it ``burden[s] no more speech than necessary to serve a significant
government interest.'' Id. at 765. Under these final regulations, a no-
contact order available as a supportive measure may not unreasonably
burden a complainant or respondent, Sec. 106.44(g)(2). For additional
discussion of the relationship between 20 U.S.C. 1681 and freedom of
speech, see the discussion of Hostile Environment Sex-Based
Harassment--First Amendment Considerations (Sec. 106.2).
[[Page 33607]]
The Department also appreciates the opportunity to clarify that
supportive measures include measures that a recipient deems to be
``reasonably available,'' consistent with the definition of
``supportive measures.'' The Department understands that use of the
phrase ``available and reasonable'' in proposed Sec. 106.44(g)(1) was
confusing to commenters and has modified the language of final Sec.
106.44(g)(1) to ``reasonably available.''
In response to commenters' confusion about the reference to
``voluntary or involuntary'' changes in class, work, housing, or
extracurricular or any other activity, the Department has eliminated
the words ``voluntary or involuntary'' in the final regulations.
Supportive measures may include changes in work schedules or work
assignments that are not imposed for punitive reasons, so that the
complainant and respondent are not working on the same projects or at
the same time. The Department declines to categorically prohibit
involuntary changes to a complainant's or respondent's class schedule
through supportive measures as it is possible that such changes may not
constitute an unreasonable burden on a complainant or respondent.
Whether such an involuntary change would constitute an unreasonable
burden which is not permitted under the definition of supportive
measures and Sec. 106.44(g), is a fact-specific analysis that would
depend on the particular circumstances of the complainant or
respondent.
Changes: The Department has modified ``available and reasonable''
in the proposed regulations to ``reasonably available'' in final Sec.
106.44(g)(1). The Department has also modified ``restrictions on
contact between the parties'' to ``restrictions on contact applied to
one or more parties.'' The Department has also removed the phrase
``voluntary or involuntary.''
Temporary Supportive Measures That Impose Burdens (Sec. 106.44(g)(2)
and (g)(3))
Comments: Some commenters expressed support for proposed Sec.
106.44(g)(2) because it would allow for supportive measures that may
burden a respondent when necessary to protect a complainant's safety or
their access to their educational environment, as long as the measures
are not punitive or disciplinary. Some commenters stated that temporary
burdensome supportive measures would protect the safety and well-being
of all students, including the respondent, in a manner fair to all
parties. Some commenters supported proposed Sec. 106.44(g)(2) but
requested that the Department allow burdensome supportive measures to
be imposed outside the pendency of the grievance procedures, including
after grievance procedures are completed. One commenter suggested that
burdensome supportive measures may be sufficient to end discrimination
and prevent its recurrence, in which case there would be no need to
initiate grievance procedures. Another commenter stated that burdensome
supportive measures should be permitted for informal resolution and
noted that informal resolution is the preferred approach for K-12
school districts.
Some commenters opposed proposed Sec. 106.44(g)(2), including
because they believed it would allow a recipient to impose burdensome
supportive measures as an ``interim punishment'' without providing
necessary due process, such as the opportunity to present evidence.
Some commenters stated that proposed Sec. 106.44(g)(2) would allow a
respondent to be denied equitable access to education and would
demonstrate a bias against respondents in violation of Sec.
106.45(b)(2). Other commenters stated that a recipient should instead
seek to equalize the application of burdensome supportive measures or
minimize the combined burden of supportive measures on all parties by
taking on the burden itself when possible. One commenter argued that
burdensome supportive measures would be arbitrary and capricious and
inconsistent with a respondent's constitutional rights, including free
speech.
Some commenters opposed proposed Sec. 106.44(g)(2) because they
perceived it to provide no limit on the burden a supportive measure
could impose, which could lead a recipient to prioritize the
complainant's access to the recipient's education program or activity
whenever the recipient chooses and without any required justification.
One commenter further asserted that the Department's explanation of
burdensome supportive measures offered in the July 2022 NPRM is
inadequate to limit the burden placed on respondents because it
suggests only that a recipient consider the impact to a respondent's
access to the recipient's education program or activity but does not
require, for example, that a recipient weigh the negative impact
against the needs of a complainant. Other commenters stated that the
2020 amendments correctly balanced providing supportive measures with
requiring the measures to be non-disciplinary and non-punitive, and
another commenter asked the Department to keep the same safety and risk
analysis required under the 2020 amendments. One commenter suggested
that proposed Sec. 106.44(h), regarding emergency removal, would be
sufficient to address any safety concerns about a respondent. One
commenter suggested that the Department should clearly limit the
situations in which burdensome supportive measures can be imposed, add
a statement that burdensome supportive measures do not indicate a
respondent is presumed responsible, and state that a decisionmaker is
not permitted to consider burdensome supportive measures when making a
determination of responsibility. One commenter suggested that the
Department clarify that no-contact orders qualify as supportive
measures that burden a respondent and offer an immediate opportunity to
appeal.
Several commenters expressed confusion over whether a supportive
measure can be burdensome while also being non-punitive and non-
disciplinary. One commenter stated that such supportive measures would
still have a disciplinary effect that would require due process
protections. One commenter asked the Department to clarify why
burdensome supportive measures cannot be imposed for ``disciplinary
reasons'' if actions that have been identified as possible disciplinary
sanctions can also be used as burdensome supportive measures. The
commenter asked the Department to further clarify that supportive
measures may continue to be listed in codes of conduct or other
policies without constituting ``disciplinary sanctions'' under proposed
Sec. 106.2 or proposed Sec. 106.45(h)(4). One commenter stated that
any measure that burdens an individual is a punitive measure regardless
of the subjective reason for imposing it.
Several commenters sought clarification on burdensome supportive
measures, including what constitutes a ``reasonable burden'' for a
supportive measure, how to determine that a burdensome supportive
measure is no more restrictive than necessary, and what the difference
is between a restrictive and disciplinary measure. Several commenters
asked the Department to clarify the difference between burdensome
supportive measures and emergency removal under proposed Sec.
106.44(h), including whether burdensome supportive measures are subject
to the same safety and risk assessment as required under proposed Sec.
106.44(h) and, if not, to provide examples of when burdensome
supportive measures can be used without meeting the threshold of Sec.
106.44(h). Another commenter asked the Department to clarify whether
[[Page 33608]]
restrictions on participation in extracurricular activities can be used
as a burdensome supportive measure or if such restrictions would have
to be justified under the emergency removal provision.
Discussion: After careful consideration of the concerns raised by
commenters, including concerns that temporary burdensome supportive
measures categorically suggest a presumption of responsibility against
a respondent, bias against a respondent, inequitable treatment of the
parties, or a violation of a respondent's constitutional rights, the
Department has determined that it is necessary to modify proposed Sec.
106.44(g)(2) to remove reference to temporary supportive measures that
burden a respondent. The Department has deleted this language to avoid
any suggestion that respondents and complainants are subject to
different treatment in the implementation of supportive measures. Under
these regulations, both complainants and respondents may be burdened by
supportive measures, but neither may be unreasonably burdened by such
measures.
The language in final Sec. 106.44(g)(2) clarifies that a recipient
is permitted to provide supportive measures to a complainant or a
respondent as long as such supportive measures are not unreasonably
burdensome to any party, are not imposed for punitive or disciplinary
reasons, and are designed to protect the safety of the parties or the
recipient's educational environment or to 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). This language aligns Sec. 106.44(g)(2) with the definition
of ``supportive measures,'' and addresses commenters' concerns about
perceived inconsistencies between the definition of ``supportive
measures'' and proposed Sec. 106.44(g)(2).
Consistent with the definition of ``supportive measures'' in the
2020 amendments, see 85 FR 30181, this change does not mean that a
supportive measure provided to one party cannot impose any burden on
the other party; rather, the definition of ``supportive measures''
specifies that supportive measures cannot impose an unreasonable burden
on the other party. As discussed in the July 2022 NPRM, the Department
heard from stakeholders that perceived the 2020 amendments to limit
supportive measures that burden a respondent to mutual restrictions on
contact. 87 FR 41448-49. These stakeholders expressed concern that this
limitation hampered their ability to restore or preserve a
complainant's access to the recipient's education program or activity.
87 FR 41449. Section 106.44(g)(2) clarifies that, as the Department
explained in the preamble to the 2020 amendments, nothing within the
regulations states that a supportive measure cannot impose any burden
on a party, but such supportive measures cannot be unreasonably
burdensome. 85 FR 30180-81; see also 87 FR 41448.
The Department appreciates the opportunity to clarify that Sec.
106.44(g) would not permit a recipient to impose supportive measures
without any limitation on how burdensome they may be. First, a
recipient must not impose a supportive measure for reasons that are
punitive or disciplinary. A punitive or disciplinary measure is one
that is intended to punish a respondent for conduct that violates Title
IX, whereas a supportive measure is one that is intended to fulfill the
purposes of supportive measures set forth in Sec. 106.2. The fact that
a measure is burdensome does not determine whether it is a supportive
measure or a punitive or disciplinary measure. For example, a stay-away
order may be burdensome because it requires a respondent to change
routes when navigating campus or avoid a certain hallway in order to
preserve a complainant's access to the recipient's education program or
activity, but it would be a permissible supportive measure to the
extent that the order was imposed to preserve access and was not
imposed for any punitive or disciplinary reason. Similarly, a
respondent might be asked to register for classes after a complainant
in order to make sure that the two parties are not in the same class.
While such a request may be burdensome, it would not be punitive or
disciplinary because the reason for providing the supportive measure
was not to punish or discipline, but rather to ensure that both parties
have access to the recipient's education program or activity during the
course of the grievance procedures. If a party believes a measure is
unreasonably burdensome, it may challenge the supportive measure
through the procedures set forth in Sec. 106.44(g)(4).
In response to a commenter, the Department notes that the reason
for a supportive measure is important to its validity. While Sec.
106.44(g)(2) gives a recipient the discretion to make case-specific
judgments about whether such actions can be used in a manner that
complies with this section and the final regulations, the Department
has replaced ``may'' with ``must'' in Sec. 106.44(g)(2) to emphasize
that a recipient must not impose supportive measures for punitive or
disciplinary reasons. If a party could show that a supportive measure
that burdened them was intended to punish them because, for example,
the supportive measure did not remedy barriers to access for the other
party, the recipient would need to terminate the supportive measure.
The Department recognizes that some actions used as supportive measures
may also be available and employed as disciplinary sanctions after a
determination of responsibility. As the Department stated in the July
2022 NPRM, such actions are not inherently disciplinary simply because
the same or similar action could be imposed for disciplinary reasons.
87 FR 41449.
Second, as the Department discussed in the 2020 amendments, the
Department expects recipients to engage in a fact-specific inquiry to
determine whether supportive measures constitute a reasonable burden on
a party. 85 FR 30182. The Department reiterates that the
unreasonableness of a burden on a party must take into account the
nature of the educational programs, activities, opportunities, and
benefits in which the party is participating, not solely those
components that are ``academic'' in nature. Id. Supportive measures
such as schedule or housing adjustments may or may not constitute an
``unreasonable'' burden on a party. Likewise, in the elementary school
and secondary school context, the Department has previously stated that
many actions taken by school personnel to quickly intervene and correct
behavior, such as educational conversations with students or changing
student seating, would be considered reasonable supportive measures.
Id. The Department notes, however, that actions such as suspension or
expulsion are inherently burdensome and would be an unreasonable burden
upon a party as a supportive measure. Id.
Section 106.44(g)(2) and the definition of ``supportive measures''
require a recipient to consider each set of unique circumstances to
determine what actions will meet the purposes, and limitations, of
supportive measures and when a party's access to the array of
educational opportunities and benefits offered by a recipient is
unreasonably burdened. See 85 FR 30182. The Department continues to
decline to provide a specific list of what supportive measures might
constitute a ``reasonable'' or ``unreasonable'' burden because that
would detract from a recipient's flexibility to take into account the
specific facts and circumstances and unique needs of the parties in
individual situations. For this reason, the Department acknowledges
[[Page 33609]]
hypothetical scenarios provided by commenters but declines to provide
an exhaustive list of circumstances in which actions or restrictions
would constitute reasonable supportive measures. The Department
understands that a recipient needs case-by-case flexibility to provide
supportive measures that restore or preserve access to a recipient's
educational community while preserving the rights of all parties.
The Department declines commenters' suggestion to require a
recipient to equalize the application of supportive measures or
minimize the combined burden of supportive measures on all parties by
taking on the burden itself when possible. This is an area in which a
recipient must have discretion to consider whether possible supportive
measures are necessary to restore or preserve a party's access to the
recipient's education program or activity; protect the safety of the
parties or the recipient's educational environment; or provide support
during the recipient's grievance procedures. The Department appreciates
the opportunity to clarify that a recipient should not rely on its
flexibility to provide supportive measures that burden a party at the
expense of considering other supportive measures, including those that
can be provided by the recipient without burden on either party.
As the Department has removed the reference to temporary measures
that burden a respondent from the definition of ``supportive
measures,'' the Department has also removed the language from Sec.
106.44(g)(2) limiting temporary measures that burden a respondent to
the pendency of a recipient's grievance procedures under Sec. 106.45,
and if applicable Sec. 106.46, and requiring that such measures be
terminated at the conclusion of the grievance procedures. Instead,
Sec. 106.44(g)(3) directs a recipient to, 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 Sec.
106.44(k). Alternatively, when appropriate, a recipient may continue
supportive measures beyond the conclusion of such procedures. The
Department cautions, however, that the determination whether a
supportive measure constitutes a reasonable burden on a party may
change following the conclusion of the grievance procedures,
particularly following a determination of non-responsibility, and a
recipient should consider whether such measures continue to meet the
definition of ``supportive measures,'' when evaluating whether to
continue, modify or terminate supportive measures under Sec.
106.44(g)(3). The Department also notes that the completion of
grievance procedures or the informal resolution process may constitute
materially changed circumstances permitting a party to seek additional
modification or termination of a supportive measure under Sec.
106.44(g)(4) and a finding of non-responsibility will often constitute
materially changed circumstances that require modification or
termination of a supportive measure.
The Department appreciates the opportunity to clarify that
supportive measures are not ``relevant evidence'' that can be
considered in reaching a determination under Sec. 106.45(b)(6) and
(h)(1).
The Department also appreciates the opportunity to clarify that
providing supportive measures under Sec. 106.44(g)(2) is distinct from
emergency removal under Sec. 106.44(h). As explained below in the
discussion of Sec. 106.44(h), emergency removal permits a recipient to
remove a respondent from the recipient's education program or activity
on a limited emergency basis when the recipient undertakes an
individualized safety and risk analysis and determines that a
respondent poses an imminent and serious threat to the health and
safety of the members of the campus community. Unlike emergency
removal, supportive measures can be provided to restore or preserve a
party's access to the recipient's education program or activity and
protect the safety of the parties or the recipient's educational
environment. Providing such supportive measures does not require an
imminent and serious threat to the health and safety of the campus
community or the risk assessment required under Sec. 106.44(h) and the
Department therefore declines the commenter's suggestion to utilize the
same safety and risk analysis required under the 2020 amendments.
Together, Sec. 106.44(g) and (h) provide a recipient with the
appropriate flexibility to respond to reports of sex discrimination,
including to preserve educational access, protect the safety of all
parties, and respond to emergency situations.
The Department disagrees that Sec. 106.44(g)(2) would result in
inequitable restrictions on speech and reiterates that it has long made
clear that it enforces Title IX consistent with the requirements of the
First Amendment. Nothing in these final regulations requires a
recipient to restrict any rights that would otherwise be protected from
government action by the First Amendment. See discussion of Hostile
Environment Sex-Based Harassment--First Amendment Considerations (Sec.
106.2); 34 CFR 106.6(d).
Changes: To align the definition of supportive measures and Sec.
106.44(g)(2), the Department has modified Sec. 106.44(g)(2) to state
that supportive measures must not unreasonably burden either party and
must be designed to protect the safety of the parties or the
recipient's educational environment or to 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). The Department has also changed ``may'' to ``must'' to
emphasize that supportive measures must not be imposed for punitive or
disciplinary reasons. The Department has also deleted ``For supportive
measures other than those that burden a respondent'' in Sec.
106.44(g)(3).
Challenges to Supportive Measures (Sec. 106.44(g)(4))
Comments: Several commenters supported proposed Sec. 106.44(g)(4)
but requested that the Department issue supplemental guidance on how to
implement a process for reviewing challenges to supportive measures,
including how to conduct the fact-specific inquiry to determine whether
a challenge should be allowed, how many challenges should be allowed,
the degree of burden that would give a respondent a right to challenge
a supportive measure, and the due process required as part of
determining whether to modify or reverse a supportive measure. One
commenter appreciated that the respondent must be offered the
opportunity to seek modification or termination of burdensome
supportive measures by appeal to an official other than the one who
originally imposed them.
Some commenters opposed proposed Sec. 106.44(g)(4) and requested
the Department remove the requirement that parties be allowed to
challenge supportive measures. Commenters asserted it would be overly
burdensome, including because of the number of requests for supportive
measures by parties at postsecondary institutions. A number of
commenters raised concerns that proposed Sec. 106.44(g)(4) would place
no limit on the number of challenges or require a certain standard of
review, which some commenters asserted would, for example, divert
resources away from other parts of a recipient's grievance procedures
or create a ``cycle of disputes,'' under which each party continually
raised challenges claiming that circumstances had changed materially.
Several
[[Page 33610]]
commenters expressed concern about the burden of identifying an
additional administrator to oversee challenges to supportive measures,
including on smaller institutions with fewer resources. One group of
commenters stated that a recipient would be required to develop an
entire administrative structure to comply with proposed Sec.
106.44(g)(4).
Other commenters opposed proposed Sec. 106.44(g)(4) because they
believed it would not provide sufficient protection for respondents.
For example, one commenter stated that proposed Sec. 106.44(g)(4)
would allow for substantial employee discretion and would not require
access to evidence, a presumption of non-responsibility, or a deadline
for completion. Another commenter stated that proposed Sec.
106.44(g)(4) would not allow respondents to challenge supportive
measures as long as they would be necessary to restore or preserve a
complainant's access to a recipient's education program or activity.
Several commenters suggested modifications to proposed Sec.
106.44(g)(4) that they perceived to be less burdensome, such as
replacing Sec. 106.44(g)(4) with a general requirement for equitable
implementation of supportive measures. Other commenters suggested
limiting the number of or bases for challenges permitted under proposed
Sec. 106.44(g)(4). One commenter suggested that the Department should
instead allow the same administrator to handle initial requests for
supportive measures and challenges under Sec. 106.44(g)(4). Another
commenter requested the Department require the fact-specific
determination whether a challenge has been timely to be in writing and
require that the determination whether to grant or deny a challenge be
resolved based on whether there has been a material change in party
circumstances.
Some commenters requested the Department clarify that if a
recipient is aware that a supportive measure is ineffective, the
recipient must modify the supportive measure or offer alternative
supportive measures.
Discussion: The Department acknowledges commenters' support for
Sec. 106.44(g)(4), including the opportunity to seek modification or
termination of supportive measures.
Although the Department recognizes that some commenters requested
the Department remove the right to challenge supportive measures, the
Department declines to do so, because Sec. 106.44(g)(4) provides the
parties with the necessary procedural protections to address the
provision of supportive measures. Section 106.44(g)(4) will provide
both parties with the opportunity to contest a recipient's decision
regarding supportive measures as long as the supportive measure is
applicable to them.
The Department disagrees that Sec. 106.44(g)(4) will not provide
sufficient protection for respondents and declines to add additional
procedural or evidentiary requirements to Sec. 106.44(g)(4). Section
106.44(g)(4) strikes the appropriate balance of ensuring procedural
protections for all parties in the form of independent review while
also providing a recipient with the flexibility to handle such
challenges in a manner that works best for their educational
communities and their available resources.
The Department acknowledges commenters' concerns about the volume
of potential challenges under Sec. 106.44(g)(4) and the perception
that Sec. 106.44(g)(4) will be burdensome to implement and
acknowledges commenters' suggestions of ways to modify Sec.
106.44(g)(4) to reduce burden. While the Department declines to replace
Sec. 106.44(g)(4) with an alternative process for the same reasons it
declines to remove Sec. 106.44(g)(4), the Department has modified
proposed Sec. 106.44(g)(4) to address these concerns and clarify that
a complainant or respondent may only challenge a recipient's decision
to provide, deny, modify, or terminate supportive measures when such
measures are applicable to them. For example, when a complainant seeks,
as a supportive measure, to transfer out of a particular section of a
course so as not to be in the same class as the respondent, the
recipient would not be required to provide the respondent with an
opportunity to challenge the recipient's decision to provide or decline
such a supportive measure, because the requested supportive measure is
not applicable to the respondent. When a complainant requests a
supportive measure that applies to a respondent, such a measure would
be applicable to both parties and a respondent could challenge the
decision to provide the supportive measure or a complainant could
challenge the decision to deny it. When a recipient provides a
supportive measure to a respondent that a complainant did not request
and that is not applicable to the complainant, such as additional
training, a recipient would not be required to provide the complainant
with the opportunity to challenge the recipient's decision to provide
the supportive measure. The Department also clarifies that the same
restriction applies to a party seeking additional modification or
termination of a supportive measure based on materially changed
circumstances. Materially changed circumstances will vary depending on
the particular context of the complainant and respondent. For example,
if a respondent is required, as a supportive measure, to transfer to a
different section of a certain class so that the respondent and
complainant are not in the same class, the respondent may seek to
terminate that supportive measure if the complainant withdraws from the
class or if the respondent is found not responsible after the
conclusion of the applicable grievance procedures. Although there is
some risk of repeated challenges based on materially changed
circumstances, this provision is necessary to ensure that the
supportive measures continue to achieve the goal of preserving or
restoring access to the education program or activity.
The Department has also modified Sec. 106.44(g)(4) to provide
additional direction on the bases for challenging a supportive measure.
The Department has added language to clarify that an impartial employee
may modify or reverse a recipient's decision to provide, deny, modify,
or terminate supportive measures applicable to them when the impartial
employee determines the decision was inconsistent with the definition
of ``supportive measures'' in Sec. 106.2. Thus, challenges to
supportive measures under Sec. 106.44(g)(4) could include, but are not
limited to, challenges concerning whether a supportive measure is
reasonably burdensome, whether a supportive measure is reasonably
available, whether the supportive measure is being imposed for punitive
or disciplinary reasons, whether the supportive measure is being
imposed without fee or charge, and whether the supportive measure is
effective in meeting the purposes for which it is intended, including
to restore or preserve access to the education program or activity,
provide safety, or provide support during the grievance procedures.
In light of the removal of temporary burdensome supportive measures
from Sec. 106.44(g)(2) and the definition of ``supportive measures,''
the Department has also deleted the language in proposed Sec.
106.44(g)(4) providing that, if a supportive measure burdens a party,
the initial opportunity to seek modification or reversal of the
recipient's decision must be provided before the measure is imposed or,
if necessary, under the circumstances, as soon as possible after the
measure has taken effect. As discussed in the July
[[Page 33611]]
2022 NPRM, the Department provides a recipient 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 a party's interests as well as other concerns, such
as circumstances in which offering such a review is impractical until
after supportive measures have been provided. 87 FR 41450; see also
Mathews, 424 U.S. at 335, 349 (holding that due process permitted an
agency to provide an evidentiary hearing after terminating disability
benefits and determining that the adequacy of due process procedures
involves a balancing test that considers the private interest of the
affected individual, the risk of erroneous deprivation and benefit of
additional procedures, and the government's interest, including the
burden and cost of providing additional procedures); Fed. Deposit Ins.
Corp. v. Mallen, 486 U.S. 230, 240 (1988) (holding that an FDIC bank
official was not entitled to a hearing prior to his suspension from
office because the government's interest in protecting depositors and
maintaining public confidence justified postponing the opportunity to
be heard until after the initial deprivation).
The Department also acknowledges that some commenters expressed
confusion about the requirement in proposed Sec. 106.44(g)(4) to
conduct a ``fact specific inquiry'' to determine what constitutes a
timely opportunity for seeking modification or reversal, including
whether this requires a formal determination and how to conduct such an
inquiry. The Department is persuaded that this language may have
inadvertently suggested a formal determination process and has deleted
this language from final Sec. 106.44(g)(4). The Department notes that
a recipient has the flexibility to determine when a request for
modification or reversal of a supportive measure is timely, and nothing
within these regulations prohibits a recipient from conducting an
informal fact-specific inquiry concerning timeliness, consistent with
the final regulations, should the recipient choose to do so.
While the Department understands that Sec. 106.44(g)(4) requires a
recipient to identify an additional impartial employee with authority
to modify or reverse decisions on supportive measures to review
challenges under Sec. 106.44(g)(4), the importance of this independent
review outweighs any burdens it may impose. Section 106.44(g)(4) does
not require an entire administrative structure, as suggested by a group
of commenters; it only requires, at minimum, assigning one person to
handle challenged decisions. The Department intends Sec. 106.44(g) to
provide a recipient with flexibility to structure the imposition and
review of supportive measures while ensuring the procedural protection
of a timely independent review. For example, the Title IX Coordinator
may choose to delegate the responsibility to provide or deny supportive
measures to another employee and provide appropriate and impartial
review of requests to terminate or modify such measures themselves, or
the Title IX Coordinator may be the one to provide or deny supportive
measures and the recipient or the Title IX Coordinator may designate an
alternative appropriate and impartial administrator to review
challenges to supportive measures. To ensure that the parties receive
an independent review, however, neither the Title IX Coordinator nor
any other employee will be permitted to both provide and review the
same supportive measures. 87 FR 41449.
The Department declines to require a recipient to affirmatively
modify supportive measures or initiate new supportive measures because
it would be extremely burdensome for a recipient to have to proactively
monitor all outstanding cases involving supportive measures for
possible changes necessitating a modification or initiation of new
supportive measures. When a party believes that a supportive measure is
ineffective upon implementation, or when circumstances have materially
changed to render it ineffective, Sec. 106.44(g)(4) will allow the
party to seek modification of such supportive measures.
In response to the suggestion to replace Sec. 106.44(g)(4) with a
general requirement for equitable implementation of supportive
measures, it is not clear what the ``equitable implementation of
supportive measures'' would entail, but the Department notes that the
challenge procedure in Sec. 106.44(g)(4), as well as the other
provisions of Sec. 106.44(g) and the definition of ``supportive
measures'' in Sec. 106.2, ensure that supportive measures are only
implemented as appropriate. To the extent the commenters are suggesting
that every supportive measure be applied equitably to both the
complainant and respondent, the Department declines to impose such a
requirement because it is inconsistent with the intent that supportive
measures be individualized measures, and would unnecessarily burden a
recipient, complainant, and respondent. For example, if either the
complainant or respondent required an escort service on campus, but the
other party did not, then it would be unnecessary to provide both
parties an escort service.
As to requests for supplemental guidance on how to implement a
process for reviewing challenges to supportive measures, the Department
agrees that supporting recipients and Title IX Coordinators in
implementing these regulations is important. The Department will offer
technical assistance, as appropriate, to promote compliance with these
final regulations.
Changes: The Department has modified Sec. 106.44(g)(4) to clarify
that a recipient must only provide a complainant or respondent with a
timely opportunity to seek, from an appropriate and impartial employee,
modification or reversal of the recipient's decision to provide, deny,
modify, or terminate supportive measures when such measures are
``applicable to them.'' The provision also provides that a party must
have the opportunity to seek additional modification or termination of
a supportive measure ``applicable to them'' if circumstances change
materially. The Department has also modified Sec. 106.44(g)(4) to
clarify that an impartial employee considering modification or reversal
of a recipient's decision to provide, deny, modify, or terminate
supportive measures may do so when the impartial employee determines
that the decision was inconsistent with the definition of ``supportive
measures'' in Sec. 106.2. For clarity, the Department changed ``the
decision being challenged'' to ``the challenged decision.'' To avoid
implying that a recipient must engage in a formal determination
process, the Department has also deleted the requirement that a
recipient must make a fact-specific inquiry to determine what
constitutes a timely opportunity for seeking modification or reversal
of a supportive measure. Finally, the Department has deleted the
requirement that if a supportive measure burdens a party, the initial
opportunity to seek modification or reversal of the recipient's
decision must be provided before the measure is imposed or, if
necessary under the circumstances, as soon as possible after the
measure has taken effect.
Disclosure of Supportive Measures (Sec. 106.44(g)(5))
Comments: Several commenters supported proposed Sec. 106.44(g)(5)
because it would limit the recipient's disclosure of supportive
measures, including limiting disclosures to parties unless necessary to
restore or preserve
[[Page 33612]]
that party's access to the education program or activity. Other
commenters raised concerns about the restrictions on the recipient's
disclosure of supportive measures in proposed Sec. 106.44(g)(5).
Several commenters requested the Department permit recipients to make
additional disclosures of supportive measures under proposed Sec.
106.44(g)(5) for ``applicable federal and state statutes, regulations
and agency policies where disclosure of misconduct, investigations,
outcomes and administrative actions is mandated by a government
entity.'' These commenters asserted that proposed Sec. 106.44(g)(5)
would conflict with the Creating Helpful Incentives to Produce
Semiconductors (CHIPS) and Science Act, which, the commenters stated,
requires recipients to report any administrative action taken in
response to allegations of sexual harassment by individual personnel
participating on the federal research grant,\38\ and the grant award
terms of agencies such as the National Institutes of Health, National
Science Foundation, and National Aeronautics and Space Administration,
which require recipients to report administrative actions against grant
award personnel for sex-based harassment.
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\38\ Public Law 117-167, Subtitle D (2022).
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Other commenters opposed proposed Sec. 106.44(g)(5) because, they
stated, it would not provide for disclosure of supportive measures to
parents and would allow supportive measures to be provided without
parental knowledge or consent.
Other commenters suggested the language in proposed Sec.
106.44(g)(5) would be too broad and may violate FERPA. One commenter
requested that the Department delete ``other than the complainant or
respondent'' from proposed Sec. 106.44(g)(5) to ensure that
information about supportive measures is only disclosed to complainants
and respondents as needed. Another commenter requested the Department
clarify that a respondent should never be informed of supportive
measures provided to complainants that do not affect the respondent.
Discussion: The Department acknowledges commenters' views on the
disclosure of supportive measures under Sec. 106.44(g)(5). As
addressed in the discussion regarding Sec. 106.44(j), the Department
received numerous comments requesting clarification of a recipient's
obligations regarding nondisclosure protections for information that a
recipient obtains in the course of complying with this part. In
response to these comments, the Department revised Sec. 106.44(j) to
apply to any personally identifiable information obtained in the course
of complying with this part, which includes personally identifiable
information obtained in offering and coordinating supportive measures
under this paragraph. In addition to Sec. 104.44(j), the Department
maintains this nondisclosure provision in Sec. 106.44(g)(5) because of
specific considerations that arise in the context of supportive
measures.
While Sec. 106.44(j) applies to personally identifiable
information obtained in the course of complying with this part, Sec.
106.44(g)(5) applies to any information about supportive measures. If
the supportive measure is being provided in connection with grievance
procedures or informal resolution, the respondent will already know the
identity of the complainant and vice versa, so it is not the identity
of the person but the information about the supportive measure itself
that warrants protection. For example, if a student has initiated
grievance procedures against another student for sex-based harassment
and receives counseling services as a supportive measure, the
respondent knows who the complainant is but is not entitled to know
that the complainant is receiving counseling services. Additionally,
this is consistent with the approach in the July 2022 NPRM, 87 FR
41451, and Sec. 106.30(a) of the 2020 amendments (``The 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.'').
To avoid confusion or conflict between this provision and Sec.
106.44(j), Sec. 106.44(g)(5) permits disclosure if any of the
exceptions in Sec. 106.44(j)(1) through (5) applies. Thus, for
instance, if the recipient obtains prior written consent from the
person receiving the supportive measure allowing disclosure of that
information, the recipient may make the disclosure pursuant to Sec.
106.44(j)(1). In response to commenters' questions about parental
knowledge, Sec. 106.44(j)(2) permits disclosures regarding supportive
measures to parents of minors in elementary school or secondary school
who are receiving the supportive measure. Also, as explained further in
the discussion of Sec. 106.44(j), Sec. 106.44(j)(4) reflects the
Department's agreement with commenters who asked the Department to
permit disclosures of supportive measures when the disclosure is
required by Federal laws or regulations or the terms and conditions of
a Federal award in connection with addressing sex discrimination.
Further, this provision clarifies that the limitations on
disclosures apply in the context of informing one party of supportive
measures provided to another party. In the July 2022 NPRM, this was a
separate sentence, but given the addition of the Sec. 106.44(j)
exceptions in final Sec. 106.44(g)(5), for clarity and to reduce
repetitiveness, the Department combined the two sentences of the July
2022 NPRM into one sentence. The Department emphasizes the importance
of not disclosing information to one party regarding a supportive
measure provided to another party because, without reassurance that
this information will not be disclosed except in the limited
circumstances in which such disclosure is necessary to provide the
measure or an exception applies, the party may be discouraged from
seeking supportive measures. For example, if one party is receiving
counseling as a supportive measure, the Department does not anticipate
that any of the exceptions of this provision would apply to allow the
recipient to disclose that information to another party. However, there
are occasions where disclosure to the other party may be necessary to
restore or preserve a party's access to the education program or
activity, such as where it may be necessary to tell one party that
another party has moved to a new dorm in order to maintain the
protections of an existing stay-away order. This provision would allow
such a disclosure.
The Department disagrees that a disclosure under Sec. 106.44(g)(5)
is too broad or would violate FERPA. FERPA permits a recipient to
disclose personally identifiable information from a student's education
records without consent if it is to other school officials whom the
recipient has determined have a legitimate educational interest, under
the criteria set forth in the recipient's annual notification of FERPA
rights, in the information. 34 CFR 99.7(a)(3)(iii), 99.31(a)(1)(i)(A).
Thus, FERPA need not preclude a recipient from being able to disclose a
supportive measure to school officials as necessary to provide the
supportive measure. However, as noted above, even if permitted by
FERPA, a recipient may inform one party of supportive measures provided
to another party only if necessary to restore or preserve the access of
the party receiving the supportive measure. For further information
about FERPA, see the discussion of Sec. 106.6(e).
The Department has replaced the phrase ``complainant or
respondent'' in
[[Page 33613]]
Sec. 106.44(g)(5) with ``the person to whom they apply'' to ensure
that supportive measures provided to a person who does not make a
complaint are encompassed within this provision. Finally, as explained
in greater detail in the discussion of Sec. 106.6(g), nothing in this
provision 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. This includes in connection
with supportive measures.
Changes: The Department modified Sec. 106.44(g)(5) to prohibit
disclosures about supportive measures to persons other than to whom the
supportive measures apply. The Department incorporated the exceptions
to the disclosure prohibition in Sec. 106.44(j)(1)-(5). For clarity,
the Department has combined the two sentences of proposed Sec.
106.44(g)(5) into one sentence. For streamlining purposes, the
Department has also deleted the phase ``ensure that it does'' from the
first sentence of Sec. 106.44(g)(5).
Students With Disabilities (Sec. 106.44(g)(6))
Comments: The Department notes that proposed Sec. 106.44(g)(7) has
been redesignated as Sec. 106.44(g)(6) in the final regulations, and
the following comment summaries and discussion refer to the provision
as Sec. 106.44(g)(6).
Some commenters expressed support for proposed Sec. 106.44(g)(6)
because it would help ensure that a Title IX Coordinator offers and
coordinates supportive measures for students with disabilities,
including by requiring consultation with the IEP team, Section 504
team, or other disability personnel working with the student given the
potential intersection of supportive measures with decisions regarding
placement, reasonable accommodations, or special education and related
services for students with disabilities.
Several commenters requested modifications to the consultation
requirements in proposed Sec. 106.44(g)(6)(i) because of concerns
about delays that the consultation requirements would cause. Some
commenters suggested that Title IX Coordinators should instead consult
only with specific officials or administrators, such as the lead member
of the Section 504 team. One commenter suggested that consultation with
the IEP or Section 504 team only be required when a supportive measure
would impact a student's placement, services, or access to a FAPE.
Another commenter suggested the Department should instead require a
Title IX Coordinator to refer to a student's IEP or Section 504 plan
rather than require consultation. One commenter asked the Department to
clarify whether the required consultation with an IEP and Section 504
team in proposed Sec. 106.44(g)(6)(i) would be an informal
consultation.
Other commenters requested the Department include a requirement in
proposed Sec. 106.44(g)(6)(ii) that a postsecondary institution's
disability services office publish a notice that states the
availability of the Title IX Coordinator to consult with a
postsecondary student with a disability if that student files a Title
IX complaint, because individuals with disabilities are at higher risk
of sex-based harassment but may not know a Title IX Coordinator is
available to provide supportive measures.
One commenter requested the Department clarify the extent to which
a Title IX Coordinator may access a student's education records under
proposed Sec. 106.44(g)(6). The commenter stated that it is not clear
a Title IX Coordinator would have a legitimate educational interest in
such records under FERPA. Additionally, some commenters requested the
Department clarify that burdensome supportive measures cannot be so
burdensome that they interfere with a respondent's access to special
education services or accommodations. Another commenter requested that
if a burdensome supportive measure will result in a unilateral
placement change under the IDEA and Section 504, the Department clarify
that any required manifestation determination review as provided for in
the IDEA would not violate proposed Sec. 106.45(b)(3).
Discussion: The Department acknowledges commenters' suggestions
concerning the requirement to consult with the IEP and/or Section 504
team in Sec. 106.44(g)(6)(i). The Department recognizes that, for an
elementary school or secondary school student with a disability who is
a complainant or respondent, supportive measures provided under Title
IX may intersect with the decisions made by an IEP team or Section 504
team, including with regard to the provision of FAPE. The Department
disagrees that consultation with the IEP or Section 504 team should
only be required when a supportive measure would impact a student's
placement, services, or access to a FAPE, because there may be other
ways in which the supportive measures intersect with the decisions made
by the IEP team or Section 504 team. For the same reason, the
Department also does not agree that referring to the IEP or Section 504
plan alone is sufficient.
After careful consideration, the Department clarifies in the final
regulations that a Title IX Coordinator is not required to consult with
a student's entire IEP or Section 504 team. Accordingly, the Department
has added language to Sec. 106.44(g)(6)(i) to make clear that a Title
IX Coordinator must consult with one or more members, as appropriate,
of a student's IEP or Section 504 team. This modification strikes the
appropriate balance between ensuring that consultation between the
Title IX Coordinator and a student's IEP or Section 504 team occurs at
the elementary school and secondary school level, while also providing
a recipient flexibility to consult in an appropriate manner given the
variety of ways in which the supportive measures can intersect with the
decisions made by the IEP team or Section 504 team. The regulations do
not require IEP or Section 504 meetings, do not mandate consultation
with full IEP teams or Section 504 teams, do not identify particular
individuals within the IEP team or Section 504 team that must be part
of the consultation, and do not specify the decisionmaking process. At
the same time, Sec. 106.44(g)(6)(i) does not preclude a recipient from
taking actions such as convening additional IEP or Section 504 meetings
or consulting with full IEP or Section 504 teams if appropriate under
the particular circumstances. The Department also recognizes that the
responsibility of ensuring that this consultation takes place lies with
the recipient. Therefore, the Department has altered the final
regulations to clarify that the recipient must require that the Title
IX Coordinator consult with at least one member of a student's IEP team
or Section 504 team.
In response to commenters' requests that the Department provide
more information about the purpose of the consultation, the Department
notes that the consultation is for purposes of complying with Title IX
and emphasizes that mere consultation with members of an IEP team or
Section 504 team may not ensure compliance with the IDEA and Section
504, as a recipient's obligations under those statutes operate
independent of these regulations. The Department anticipates that, in
many cases, consultation will identify additional measures that are
necessary to ensure compliance with the IDEA and Section 504.
Accordingly, the Department has revised this provision to emphasize
that the purpose of the consultation is to determine how the recipient
can comply with relevant laws
[[Page 33614]]
protecting students with disabilities while carrying out the
recipient's obligation under Title IX and this part.
The Department acknowledges commenters' requests that a recipient
be required to publish additional notices concerning the availability
of a Title IX Coordinator to provide supportive measures to students
with disabilities, but declines to mandate such a notice because the
requirements for the contents of the notice of nondiscrimination within
Sec. 106.8(c)(1) of these final regulations are sufficient to notify a
recipient's community members about the scope of a recipient's
obligations to them under Title IX. Nothing in these final regulations
prohibits a recipient from providing such notice as appropriate under
the circumstances and consistent with the requirements of the final
regulations.
The Department reiterates that nothing within Sec. 106.44(g)(6)
abrogates a recipient's obligation to comply with other Federal laws to
protect the rights of students with disabilities, including when
implementing supportive measures. Section 106.44(g)(6) does not modify
any rights under the ADA, IDEA, or Section 504. The Department further
emphasizes that, as discussed in the FERPA overview, to the extent a
Title IX Coordinator's consultation under this section results in
access to disability-related education records, such as an IEP or
Section 504 plan, such access is solely in connection with the
implementation of supportive measures, which may be defined by an
educational agency or institution as constituting a legitimate
educational interest. 34 CFR 99.31(a)(1)(i)(A). FERPA requires a
recipient to include criteria on what the recipient considers to be a
``legitimate educational interest'' in the recipient's annual
notification of rights under FERPA. 34 CFR 99.7(a)(3)(iii).
Changes: Proposed Sec. 106.44(g)(7) has been redesignated as Sec.
106.44(g)(6) in the final regulations because of the elimination of
proposed Sec. 106.44(g)(6), as discussed above. The Department has
revised Sec. 106.44(g)(6)(i) to state that ``the recipient must
require the Title IX Coordinator to consult'' with one or more members
of the IEP or Section 504 team, as appropriate, to align this section
with Sec. 106.8(e), as appropriate, and to clarify that it is the
recipient's duty to ensure that the Title IX Coordinator consults with
at least one member of a student's IEP team or Section 504 team when
implementing supportive measures concerning an elementary or secondary
student with a disability.
The Department has also removed the term ``Section 504 team'' from
Sec. 106.44(g)(6)(i) because the term does not appear in the Section
504 regulations. The Department has also changed ``supports'' to
``support'' in Sec. 106.44(g)(ii) for consistency with Sec. 106.8(e).
Finally, the Department has revised Sec. 106.44(g)(6)(i) and (ii) to
provide that the Title IX Coordinator should consult ``to determine how
to comply'' with relevant Federal laws protecting students with
disabilities.
8. Section 106.44(h) Emergency Removal
Non-Physical, Serious, and Imminent Threats
Comments: Some commenters supported proposed Sec. 106.44(h)
because it would provide recipients greater flexibility to remove a
respondent on an emergency basis when the respondent poses a serious
threat to a complainant's physical or non-physical health and safety
and recognizes the full range of serious threats that a respondent may
pose to a complainant.
Some commenters objected to removal of the word ``physical''
because the Department considered and rejected similar requests to
permit emergency removal for non-physical threats in the 2020
amendments. Other commenters opposed removal of the term ``physical''
from current Sec. 106.44(c) including because, the commenters argued,
doing so would make the standard for when emergency removal is
permitted less clear and subjective and because emergency removal
seriously burdens a respondent and therefore should be limited to
physical threats. One commenter noted that whether a threat is serious
is subjective. Commenters asked the Department to clarify the standard
a recipient should apply to determine whether emergency removal is
appropriate to address an individual's allegation that a respondent's
presence in the recipient's education program or activity causes them
emotional distress and what consideration a recipient would be expected
to give to a complainant's assertion that they would feel unsafe to
participate in an activity if a respondent is not removed.
Some commenters cautioned against permitting indefinite emergency
removal of a respondent without providing an opportunity to challenge
the decision. Commenters asserted that recipients should be required to
follow the grievance procedures in proposed Sec. 106.45, and if
applicable Sec. 106.46, before a respondent is removed on an emergency
basis. Commenters asked the Department to clarify what constitutes an
emergency, the level of due process a recipient must afford a
respondent before removal, and the process a recipient would be
required to use if a respondent were to challenge their removal.
Commenters recommended various changes to the immediate and serious
threat standard in proposed Sec. 106.44(h). Some commenters opposed
proposed Sec. 106.44(h) because they believed it set the bar for
emergency removal of a respondent too high and would limit a
recipient's ability to protect members of its community from sex
discrimination. Commenters asked the Department to replace ``immediate
and serious threat to health or safety'' with ``ongoing threat to
health or safety.'' Other commenters recommended the Department replace
``immediate'' with ``imminent'' and asserted that tying a recipient's
own emergency response to an immediate threat is not aligned with
current best practices for threat assessment. One commenter stated that
law enforcement should address immediate threats because there is not
time for a recipient to assess the risk of such threats. In contrast,
the commenter explained that an imminent threat is one that is likely
to occur soon but not immediately. Another commenter suggested the
Department require a recipient to determine that a realistic or
credible threat to health or safety is imminent, ongoing, or reasonably
likely to occur. One commenter suggested that the Department replace
the term ``individualized safety and risk analysis'' with the term
``threat assessment,'' which the commenter stated describes campus
threat assessment efforts.
Discussion: The Department has carefully considered the comments
and agrees that Sec. 106.44(h) gives recipients the flexibility they
need to remove a respondent on an emergency basis when the recipient
determines that a respondent poses an imminent and serious threat to
the health or safety of members of its community. The Department has
considered comments related to the proposed provision's elimination of
the requirement in the 2020 amendments that the threat to safety must
be ``physical.'' As noted in the July 2022 NPRM, 87 FR 41452, the
Department received feedback through the June 2021 Title IX Public
Hearing and listening sessions in which postsecondary institutions and
safety compliance officers stated that limiting emergency removals to
circumstances in which a respondent poses a threat to the physical
health or safety of any student or other individuals fails to account
for the significant non-physical harms some respondents pose to
complainants and other individuals. A serious non-
[[Page 33615]]
physical threat to student safety may warrant 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, yet the stalking could present an imminent and serious
threat to the student's health and safety. The Department concludes
that serious, non-physical threats can be assessed as objectively as
physical threats. As the stalking example shows, a complainant's
assertion that a respondent's participation in a recipient's education
program or activity is making them unsafe and causing them significant
distress can be a basis for emergency removal if it rises to the level
of an ``imminent and serious threat to the health or safety of a
complainant.'' The Department further concludes that it is appropriate
to address such serious, non-physical threats on the same basis as
physical threats.
The Department understands that emergency removal is a significant
hardship for a respondent. The final regulations consider both a
recipient's mandate to ensure a safe campus community and the rights of
a respondent. As the Department explained in the 2020 amendments, when
a genuine emergency exists, a recipient must have the authority to
remove a respondent while providing notice and an opportunity for the
respondent to challenge that decision. 85 FR 30224. The Department
further notes that final Sec. 106.44(h) retains the protection in
Sec. 106.44(c) of the 2020 amendments requiring a recipient to provide
a respondent with notice and an opportunity to challenge the decision
immediately following a removal. The Department appreciates the
opportunity to clarify that final Sec. 106.44(h) does not permit a
recipient to permanently remove someone from its education program or
activity. As noted in the 2020 amendments in response to requests that
the Department set a time limitation for emergency removals, ``the
issue of whether a respondent needs to be removed on an emergency basis
should not arise in most cases,'' 85 FR 30230, and as these final
regulations clarify, emergency removal is appropriate only when
justified by an imminent and serious threat to health and safety.
Moreover, emergency removal is not intended to serve as a substitute
for grievance procedures that would resolve underlying allegations of
sex discrimination. See id. at 30229. Section 106.44(h) continues ``to
ensure that recipients have the authority and discretion to
appropriately handle emergency situations that may arise from
allegations'' of sex discrimination, id.; however, the Department
continues to believe that it is not necessary to specify a maximum
amount of time for emergency removal arising from allegations of sex
discrimination. Id. at 30230. If a recipient seeks permanent expulsion
or removal of an individual, the recipient must implement the grievance
procedures established in Sec. 106.45, and if applicable Sec. 106.46,
prior to taking such action. See Sec. 106.45(h)(4). Those grievance
procedures require a recipient to establish reasonably prompt
timeframes for the major stages of the grievance procedures including a
process for extending timeframes for good cause shown, and notice to
the parties. See Sec. 106.45(b)(4). For all of these reasons, the
Department has determined that Sec. 106.44(h) gives recipients the
necessary flexibility to ensure a safe campus community while
protecting the rights of all students.
The Department disagrees with a commenter's concern that the
determination whether a threat is ``serious'' is subjective. It is a
familiar term that is adequately flexible to inform an individualized
assessment of the unique facts and circumstances of the health and
safety risks posed by a respondent. Also, as was true under the 2020
amendments, the Department continues to believe it unnecessary to
define what constitutes an emergency or to specify the level of process
a recipient must provide through its procedures to challenge an
emergency removal, beyond providing the respondent with notice and an
opportunity to challenge the decision immediately following the
removal. Instead, the Department continues to leave the decision about
which specific procedures to employ to a recipient's discretion. See 85
FR 30226. As the Department explained in the 2020 amendments, ``[w]e do
not believe that prescribing procedures for the post-removal challenge
is necessary or desirable, because this provision ensures that
respondents receive the essential due process requirements of notice
and an opportunity to be heard while leaving recipients flexibility to
use procedures that a recipient deems most appropriate.'' Id. at 30229
(citing Goss, 419 U.S. at 582-83). The Department continues to believe
that recipients must have flexibility to address emergency situations
and notes that Sec. 106.44(h) appropriately balances the seriousness
of a respondent's removal and rights to receive the ``essential''
protections of due process against the risks raised in situations in
which emergency removal is justified. In particular, the Department
notes that the emergency removal provision contains a number of
guardrails to protect against misuse of the provision, including
requirements that a recipient must: (1) undertake an individualized
safety and risk analysis; (2) determine that an imminent and serious
threat to the health or safety of a complainant, or any students,
employees, or other persons arising from the allegations of sex
discrimination justifies removal; and (3) provide the respondent with
notice and an opportunity to challenge the decision immediately
following the removal. The Department further declines to specify
additional protections that must be provided because, since the 2020
amendments went into effect, many recipients have established
procedures that comply with these requirements and through which a
respondent may challenge their emergency removal. In addition, because
Sec. 106.44(h) appropriately balances a recipient's need for
flexibility to address emergency situations and a respondent's due
process rights, the Department declines to require recipients to follow
the grievance procedures in Sec. 106.45, and if applicable Sec.
106.46, before a respondent is removed on an emergency basis.
The Department has carefully considered comments that the emergency
removal standard in the 2020 amendments did not give recipients
sufficient flexibility to remove a respondent who poses a serious
threat to the health and safety of the campus community. The Department
also acknowledges comments that suggested a change to align proposed
Sec. 106.44(h) with threat assessment best practices by focusing the
emergency removal provision on ``imminent'' rather than ``immediate''
threats. The Department agrees that there is a need to distinguish
emergency situations involving ``immediate'' threats from those in
which a threat is ``imminent.'' The Department agrees with commenters
that ``immediate'' threats involve emergency situations in which there
is not time for recipients to assess risks and in which an immediate
law enforcement response is necessary. In contrast, ``imminent''
threats are those that while not active, are likely to occur soon but
not immediately, and thus are appropriate for an individualized risk
assessment. Therefore, the Department has replaced ``immediate threat''
in the proposed regulations with ``imminent threat'' in final Sec.
106.44(h). The Department disagrees with the
[[Page 33616]]
commenters who recommended requiring a threat to be ``ongoing'' to
justify emergency removal because a threat may present an imminent and
serious risk to safety that justifies emergency removal, even if it is
not shown to be an ongoing threat.
Regarding the regulation's requirement that recipients undertake an
individualized risk assessment, the Department recognizes that
different recipients use different terms to describe their
individualized assessments. Regardless of the precise terms or phrases
used, recipients will satisfy the requirement in Sec. 106.44(h) if
they have a process to conduct an analysis of safety and risk that is
particular to the respondent and circumstances at issue, regardless of
the words recipients use to describe their assessment.
Finally, commenters who asserted that proposed Sec. 106.44(h) set
too high a bar to protect members of the recipient's community from sex
discrimination misapprehend the purpose of emergency removal, which is
not, as these commenters suggested, to protect against sex
discrimination, rather, it is to protect against an imminent and
serious threat to health or safety that arises from allegations of sex
discrimination. The remaining provisions in final Sec. 106.44 and the
grievance procedures requirements in Sec. Sec. 106.45 and 106.46
afford recipients sufficient tools to adequately protect against sex
discrimination allegations that do not raise a concern of imminent or
serious threats to health or safety.
Changes: The Department has revised Sec. 106.44(h) to replace
``immediate'' with ``imminent'' and added the words ``a complainant or
any'' before ``students, employees, or other persons'' to clarify that
the word ``students'' does not exclude complainants.
Sex Discrimination and Protected Speech
Comments: Some commenters objected to allowing a recipient to
permit emergency removal for all forms of alleged sex discrimination.
One commenter objected to the Department's proposal to expand the basis
for emergency removal beyond sexual harassment to other forms of
alleged sex discrimination because, the commenter asserted, it would be
difficult to identify sex discrimination other than sex-based
harassment that would justify emergency removal.
Some commenters expressed concern that respondents could be
subjected to emergency removal for expressing their viewpoint, such as
engaging in speech questioning or criticizing the inclusion of
transgender students in single-sex spaces and activities. One commenter
alleged that proposed Sec. 106.44(h) would result in the emergency
removal of Christian, conservative, and pro-life students from campus
when other students who do not share their views assert that the
disagreement causes them distress. Another commenter stated that speech
alone cannot pose imminent danger to individuals.
Discussion: The Department has carefully considered the comments
regarding the appropriateness of emergency removal for all forms of sex
discrimination. The Department declines to limit Sec. 106.44(h) to
sex-based harassment, because the nondiscrimination mandate in Title
IX--and therefore the basis for a recipient's response--applies to all
forms of sex discrimination, including circumstances involving sex
discrimination other than sex-based harassment. While the Department
recognizes that conduct that rises to the level of an ``imminent and
serious threat to the health or safety'' of members of a recipient's
communities may often take the form of sex-based harassment, the
Department declines to limit the scope of Sec. 106.44(h) to sex-based
harassment in order to give recipients flexibility to address
circumstances in which conduct falls short of the definition of sex-
based harassment but still poses an imminent and serious threat to the
health or safety of members of a recipient's communities. The
Department has consistently recognized that when a genuine emergency
exists, a recipient must have the authority to remove a respondent.
See, e.g., 85 FR 30224.
The Department reiterates that emergency removal is intended to
apply only to those situations that pose an imminent and serious threat
to health and safety of a complainant or any students, employees, or
other persons arising from the allegations of sex discrimination, an
intentionally high standard. The Department does not anticipate that
speech that simply and even strongly articulates a point of view on
ethical, social, political, or religious topics would meet this
standard even though others may find that speech offensive or
objectionable. Indeed, the Department is unaware of circumstances in
which such speech has been the basis for removal under the lower
standard set forth in Sec. 106.44(c) of the 2020 amendments, which
permits removal for even non-serious immediate threats to physical
health or safety. See also 87 FR 41452 (explaining that the Department
added the term ``serious'' in the proposed regulations to confirm that
non-serious threats do not warrant emergency removal). In any event,
the Department has long made clear that Title IX is enforced consistent
with the requirements of the First Amendment, and nothing in these
final regulations requires a recipient to restrict any rights that
would otherwise be protected from government action by the First
Amendment. See 34 CFR 106.6(d) (``Nothing in this part 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''); see also discussion of Hostile Environment Sex-Based
Harassment--First Amendment Considerations (Sec. 106.2) (Section I.C).
For the same reasons, the Department declines to amend Sec. 106.44(h)
because of some commenters' concern that individuals could be subjected
to emergency removal for expressing their viewpoints.
The Department disagrees with one commenter's claim that the 2020
amendments permitted emergency removal only for an individual's
nonspeech actions and did not permit emergency removal for sex-based
harassment accomplished through speech. The 2020 amendments
specifically recognized emergency removal as an option for threats of
violence and did not limit the provision to physical conduct. The 2020
amendments also provided that the underlying sexual harassment from
which a threat emanates need not be limited to sexual assault or rape
but may be verbal sexual harassment. 85 FR 30225. The Department has
therefore consistently recognized that threats beyond acts of physical
violence may justify emergency removal.
Changes: None.
Partial Emergency Removals and Supportive Measures
Comments: Some commenters asked about the distinction between
emergency removal and supportive measures that may be provided under
Sec. 106.44(g) that would burden a respondent, including those that
would remove a respondent from a part of a recipient's education
program or activity during the pendency of a recipient's grievance
procedures. Commenters asked whether the requirements for emergency
removal, including the opportunity to challenge the removal, would need
to be met when a recipient institutes a supportive measure that removes
a respondent from a specific program or activity but not from a
recipient's entire education program or activity. Some commenters
favored allowing these kind of ``partial''
[[Page 33617]]
emergency removals while other commenters opposed it. One commenter
stated that recipients currently do not know whether partial emergency
removal is permitted under the 2020 amendments and requested
clarification.
Some commenters stated that proposed Sec. 106.44(h) should permit
greater flexibility for a recipient to remove a respondent for the
safety of the complainant and the recipient's educational community,
while allowing the respondent to continue to participate in a modified
way. One commenter asked the Department to modify proposed Sec.
106.44(h) to include language requiring a recipient to provide
respondents with alternative access to their academic classes, work,
and responsibilities, which the commenter stated would be consistent
with respondents' due process rights.
Multiple commenters asked the Department to clarify when removal
from part of a recipient's education program or activity would be
permitted and provided several hypothetical scenarios.
Discussion: The Department has determined that, together with the
requirements of Sec. Sec. 106.44, 106.45, and if applicable 106.46,
allowing emergency removal consistent with the requirements of Sec.
106.44(h) provides appropriate flexibility to recipients to respond to
emergency situations. See, e.g., 87 FR 41452. The 2020 amendments allow
a recipient to remove a respondent on an emergency basis from a part of
a recipient's education program or activity, rather than the entire
program or activity, in appropriate circumstances. See 85 FR 30232
(``where the standards for emergency removal are met . . . the
recipient has discretion whether to remove the respondent from all the
recipient's education programs and activities, or to narrow the removal
to certain classes, teams, clubs, organizations, or activities''). The
Department agrees with commenters who suggested that this option, when
sufficient to address an imminent and serious safety risk, may reduce
the burden that an emergency removal from the entire program places on
a respondent. For that reason, under Sec. 106.44(h) of the final
regulations, a recipient retains discretion to remove a respondent on
an emergency basis from one or more parts of its education program or
activity, as long as the recipient meets the other requirements of
final Sec. 106.44(h).
The Department acknowledges that some commenters expressed
confusion over when a recipient would remove a respondent from a part
of its education program or activity as an emergency removal that meets
the requirements of Sec. 106.44(h) and when a recipient would do so as
a supportive measure consistent with the requirements of proposed Sec.
106.44(g)(2). In some cases, a partial removal may be appropriate as a
supportive measure, as long as it is consistent with the requirements
of Sec. 106.44(g) and the definition of supportive measures in Sec.
106.2. In emergency situations, a recipient could remove a respondent
using the emergency removal procedures under Sec. 106.44(h). With
emergency removal, a recipient would be permitted to remove a
respondent from all or part of its education program or activity, as
long as it affords the respondent notice and an opportunity to
challenge the decision immediately following the removal.
Finally, as clarified in the preamble to the 2020 amendments, in
many cases a recipient will ``accommodate students who have been
removed on an emergency basis with alternative means to continue
academic coursework during a removal period,'' 85 FR 30226, and the
post-removal notice and opportunity to challenge a removal required
under final Sec. 106.44(h) provides respondents adequate opportunity
to raise concerns about continued access to coursework.
Changes: None.
Emergency Removal and Other Legal Requirements
Comments: One commenter asked the Department to clarify that
disclosure of information related to an emergency removal is permitted
to comply with applicable Federal and State statutes, regulations, and
agency policies related to misconduct investigations, outcomes, and
administrative actions. Other commenters asked the Department to
clarify how proposed Sec. 106.44(h) relates to the Clery Act emergency
removal provision and whether proposed Sec. 106.44(h) would impact a
postsecondary institution's obligations under the Clery Act to restore
and preserve campus safety. Some commenters asked the Department to
confirm that if recipients can take immediate action consistent with
their policies to address discrimination prohibited under other laws,
proposed Sec. 106.44(h) would not preclude them from taking comparable
action to address sex discrimination. Commenters also asked the
Department to clarify that a decisionmaker cannot take into
consideration the emergency removal of a student when determining
responsibility in any related sex discrimination grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46, which would ensure
that a respondent enjoys the presumption of non-responsibility.
Some commenters supported proposed Sec. 106.44(h) because it would
provide recipients greater flexibility to remove a respondent on an
emergency basis following an individualized assessment while continuing
to recognize that emergency removal does not modify rights under the
IDEA, Section 504, or the ADA. Other commenters asked the Department to
further clarify the relationship between proposed Sec. 106.44(h) and
the IDEA and Section 504 requirements for changes to the placement of a
student with a disability, including whether a recipient must conduct
any required manifestation determination review before removing a
respondent who is a student with a disability under Sec. 106.44(h).
One commenter suggested the Department modify proposed Sec. 106.44(h)
to provide that a recipient may make an initial determination that a
respondent student violated the code of conduct solely for purposes of
conducting an MDR.
Discussion: As noted in the 2020 amendments and as explained in the
discussion of the Framework for Grievance Procedures for Complaints of
Sex Discrimination (Section II.C), these final regulations may impose
different requirements than Title VI or Title VII, but they do not
present an inherent conflict with those statutes. See 85 FR 30439.
Therefore, while a recipient may be able to take immediate action to
address other discrimination under other laws following procedures that
would not satisfy the requirements of Sec. 106.44(h), the Department
continues to believe that the emergency removal requirements in these
final regulations are appropriate for addressing sex discrimination,
even if that means that a recipient is required to handle different
types of discrimination under different procedures. See 85 FR 30226.
The Department has determined that for Title IX purposes, a lower
threshold would not appropriately balance a recipient's need to remove
a respondent posing an immediate threat with the need to ensure that
such action is not inappropriately used to bypass the general
prohibition on imposing discipline without first following a
recipient's grievance procedures' requirements. And as explained in the
discussion of Sec. 106.8(b), these final regulations do not alter
requirements under FERPA or its implementing regulations, or the Clery
Act or its implementing regulations, and disclosures pursuant to such
[[Page 33618]]
requirements generally will be permitted under Sec. 106.44(j). For
additional information on the circumstances under which a recipient may
disclose personally identifiable information obtained in the course of
complying with this part, see the discussion of Sec. 106.44(j).
The Department acknowledges commenters' views on Sec. 106.44(h),
including its continued recognition of a respondent's right to an
assessment and other disability-related rights under the IDEA, Section
504, and the ADA. Emergency removal under Sec. 106.44(h) provides
flexibility to address imminent and serious threats to individual
safety in a recipient's education program or activity, including
threats to non-physical health, while safeguarding the rights of a
respondent under applicable law. The Department made a technical change
to final Sec. 106.44(h) to replace the reference and citation to Title
II of the ADA with a reference to the ADA and a citation to 42 U.S.C.
12101 et seq. The Department made this change to clarify that Sec.
106.44(h) does not modify any rights under any part of the ADA.
As explained in greater detail in the discussion of Sec. 106.8(e),
the IDEA and Section 504 protect the rights of students with
disabilities in elementary school and secondary school. The
implementing regulations for the IDEA and Section 504 require that a
group of persons, known as the IEP team or Section 504 team, is
responsible for making individualized determinations about what
constitutes a FAPE for each student with a disability. Section
106.44(h) does not modify any rights under the ADA, IDEA, or Section
504, including the right to a manifestation determination review as
provided for in IDEA in some cases, and a recipient might have to treat
a respondent student with a disability subject to emergency removal
differently than a respondent student without a disability to comply
with applicable Federal disability laws. 85 FR 30228. Nothing in Sec.
106.44(h) prevents a recipient from involving a respondent student's
IEP team before making an emergency removal decision, and Sec.
106.44(h) does not require a recipient to remove a respondent when the
recipient has determined that the threat posed by the respondent is a
manifestation of a disability and IDEA requirements would thus
constrain the recipient's discretion to remove the respondent. 85 FR
30229. Moreover, to ensure that the regulations preserve the rights of
students with a disability at the elementary school and secondary
school levels, the final regulations include Sec. 106.8(e), which
requires a recipient's Title IX Coordinator or designee to consult with
one or more members, as appropriate, of the student's IEP or Section
504 team about the student in the course of complying with Sec.
106.45.
Finally, the Department appreciates the opportunity to clarify that
emergency removal is not ``relevant evidence'' that can be considered
in reaching a determination under Sec. 106.45(b)(6) and (h)(1).
Changes: The Department changed the citation of Title II of the
Americans with Disabilities Act of 1990, 42 U.S.C. 12131-12134, to the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq.
9. Section 106.44(i) Administrative Leave
Comments: Some commenters expressed general support for proposed
Sec. 106.44(i), including the recognition that placing a student
employee respondent on administrative leave may be appropriate in some
cases as a supportive measure. One commenter asked the Department to
clarify that a recipient may place volunteers, agents, and other
persons authorized by the recipient to provide an aid, benefit, or
service on administrative leave.
Some commenters raised due process concerns with proposed Sec.
106.44(i). For example, one commenter likened administrative leave to
emergency removal, both of which the commenter asserted would
prioritize a recipient's reputation over a respondent's due process
rights. Another commenter stated that proposed Sec. 106.44(i) would
permit an action that is punitive in nature and presumes an employee
respondent's responsibility before or during an investigation. This
commenter asked the Department to require a recipient to afford an
employee the protections provided under proposed Sec. 106.45, and if
applicable Sec. 106.46, before placing the employee on administrative
leave.
One commenter observed that administrative leave can be disruptive
to an employee respondent's work, damage the employee respondent's
reputation, and make an employee respondent vulnerable to targeting by
individuals on a recipient's campus. Another commenter asked the
Department to clarify that a recipient can resolve workplace issues
with employee respondents through its existing faculty and staff
processes.
Discussion: Section 106.44(i) grants a recipient discretion to
place respondents who are employees on administrative leave during the
pendency of a recipient's grievance procedures. The Department
disagrees with commenters who asserted that allowing administrative
leave presumes a respondent's responsibility. The Department reiterates
that a respondent may only be found responsible for sex discrimination
under Title IX upon the conclusion of a recipient's grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46. The
Department appreciates the opportunity to clarify that nothing in Sec.
106.44(i) interferes with a recipient's discretion to place respondents
who are employees, including student employees, on administrative leave
from their employment responsibilities. This discretion extends only to
a student-employee's employment responsibilities during the pendency of
the recipient's grievance procedures; a recipient must comply with
Sec. 106.45, and if applicable Sec. 106.46, before any disciplinary
sanctions are imposed on a student-employee respondent, and supportive
measures may not be provided for punitive or disciplinary reasons.
Section 106.44(i) of these final regulations is consistent with the
Department's position in the preamble to the 2020 amendments that a
recipient may place a student-employee respondent on administrative
leave if it would not violate other regulatory provisions to do so. 85
FR 30237.
The Department disagrees that proposed Sec. 106.44(i) should be
modified to state that a recipient may place volunteers, agents, and
other persons authorized by the recipient to provide an aid, benefit,
or service on administrative leave. Although the 2020 amendments and
Sec. 106.44(i) do not define administrative leave, the Department
continues to understand administrative leave as a temporary separation
from one's employment, generally with pay and benefits, and thus, the
term applies to a recipient's employees. See 85 FR 30236. As explained
in the discussion of the training requirements in Sec. 106.8(d), given
the range of employment arrangements and circumstances across
recipients in States with differing employment laws, individual
recipients are best situated to determine whether volunteers, agents,
and other persons authorized by the recipient to provide an aid,
benefit or service are employee respondents to whom Sec. 106.44(i)
applies. The Department notes, however, that even if such individuals
are not designated as employees, nothing in Sec. 106.44(i) restricts a
recipient from following its policies related to administrative leave
with respect to other individuals (including volunteers, agents, and
the like), provided that the policies comply with these final
regulations and other
[[Page 33619]]
applicable laws. Nor does Sec. 106.44(i) interfere with a recipient's
authority to remove a volunteer, agent, or other authorized person from
their position as a supportive measure for non-punitive, non-
disciplinary reasons to protect the safety of a party or the
recipient's educational environment, consistent with the requirements
of Sec. 106.44(g). Likewise, Sec. 106.44(i) does not interfere with a
recipient's authority to remove a volunteer, agent, or other authorized
person from their position on an emergency basis when such removal is
consistent with the requirements of Sec. 106.44(h).
The Department has carefully considered the comments expressing
concerns regarding due process in connection with administrative leave.
The Department notes that Sec. 106.44(i) is substantially the same as
Sec. 106.44(d) of the 2020 amendments, with only minor changes
discussed in the July 2022 NPRM. See 87 FR 41452. Consistent with its
position in the preamble to the 2020 amendments, the Department desires
to give each recipient flexibility to decide when administrative leave
is appropriate, considering its existing obligations under State laws
and employment contracts. See 85 FR 30236. Section 106.44(i) does not
elevate a recipient's reputation over an employee respondent's due
process rights. Nor is an employee placed on administrative leave
denied due process. First, if administrative leave is used as a
supportive measure under Sec. 106.44(g), the recipient must comply
with the procedural protections in that provision. Because Sec.
106.44(g)(2) requires recipients to ensure that supportive measures do
not unreasonably burden a party, administrative leave as a supportive
measure would generally be paid. Second, if a recipient seeks an
emergency removal under Sec. 106.44(h), then those procedural
protections apply.
Nonetheless, the Department acknowledges that there could be
circumstances in which a recipient determines it must place an employee
on administrative leave for reasons other than supportive measures or
emergency removal. As explained in the 2020 amendments, the Department
acknowledges that some State laws allow or require an employee to be
placed on administrative leave, or its equivalent, and Sec. 106.44(i)
does not preclude compliance with such State laws while a Title IX
investigation is pending. See 85 FR 30236. Similarly, Sec. 106.44(i)
does not interfere with a recipient's contractual obligations, such as
under a collective bargaining agreement, or obligations to comply with
the recipient's own policies related to administrative leave. In such
circumstances in which administrative leave is used outside of
supportive measures or emergency removal, the final regulations provide
recipients flexibility to use their existing procedures related to
administrative leave.
In addition, as the Department previously explained, it interprets
these Title IX regulations, including Sec. 106.44(i), in a manner that
complements an employer's obligations under Title VII for responding to
matters involving sex-based harassment and discrimination. See 85 FR
30237. The Department notes that other requirements in the U.S.
Constitution, Federal or State law, or collective bargaining agreements
may limit a recipient's use of administrative leave, and nothing in
Sec. 106.44(i) requires a recipient to place an employee on
administrative leave during the pendency of the recipient's grievance
procedures. Section 106.44(i) is not intended to override or modify
rights under other laws or collective bargaining agreements.
As explained in the preamble to the 2020 amendments, the Department
notes that administrative leave under these regulations is temporary,
and Sec. 106.44(i) only applies ``during the pendency of the
recipient's grievance procedures,'' which have been crafted to protect
due process rights. Recipients are not precluded from applying
applicable administrative leave laws, agreements, or policies at other
times, but such application is outside the scope of Sec. 106.44(i).
See 85 FR 30236-37. The Department notes, however, that placing an
employee on administrative leave does not deprive the employee of other
rights available under Title IX. If, for example, an employee believes
that they have been subject to sex discrimination or retaliation
through the application of an employer's administrative leave policy,
the employee would have recourse under Title IX and these final
regulations. See Sec. Sec. 106.45, 106.46, 106.71.
As stated in the 2020 amendments, the Department acknowledges that
being placed on administrative leave may constitute a hardship for an
employee. See 85 FR 30236. But such leave may be necessary to ensure
that a recipient's education program or activity is operated consistent
with Title IX's nondiscrimination mandate, such as when a recipient
determines that a leave of absence is an appropriate supportive measure
under Sec. 106.44(g) or necessary to respond to an imminent and
serious threat to health or safety under Sec. 106.44(h). And in those
circumstances, a recipient may impose administrative leave only if it
meets the substantive and procedural requirements of Sec. 106.44(g) or
(h). The Department also acknowledges that placing an employee on
administrative leave may impact the workplace, but for the reasons
described above, the Department maintains that a recipient should have
flexibility not only to use administrative leave as a supportive
measure or in the context of emergency removal, but also to comply with
other State law or contractual obligations, and the recipient would be
in the best position to know whether administrative leave is
appropriate.
Finally, the Department declines to modify the administrative leave
provision to permit a recipient to address an employee respondent's
employment issues solely through its existing faculty and staff
employment or discipline processes. The July 2022 NPRM acknowledged
stakeholders' requests that the Department exclude complaints against
employee respondents from the various requirements of its Title IX
regulations and declined to propose changes to its grievance procedure
requirements in response to these concerns. See, e.g., 87 FR 41458-59.
The Department also declines to do so now because extending the
requirements of these Title IX regulations to employee respondents
ensures that recipients meet their obligations under Title IX. As the
Department explained in the 2020 amendments, nothing in these Title IX
regulations precludes a recipient from taking additional action under
an employee code of conduct or other employment policies, see 85 FR
30440, or from honoring an employee's rights guaranteed by a collective
bargaining agreement or employment contract, as long as doing so does
not prevent the recipient from fulfilling its obligations under the
Department's Title IX regulations, id. at 30442.
Changes: To align with a change made in Sec. 106.44(h), the
Department changed the citation of Title II of the Americans with
Disabilities Act of 1990, 42 U.S.C. 12131-12134, to the Americans with
Disabilities Act, 42 U.S.C. 12101 et seq.
10. Section 106.44(j) Prohibited Disclosures of Personally Identifiable
Information
Comments: The Department received numerous comments seeking
clarification about a recipient's duty to maintain the confidentiality
of information obtained while complying with this part. Many commenters
supported proposed Sec. 106.44(j) but asked the Department to provide
the nondisclosure protections of this
[[Page 33620]]
proposed paragraph beyond the context of informal resolution processes,
grievance procedures under Sec. 106.45, and if applicable Sec.
106.46, or actions required under proposed Sec. 106.44(f)(6). These
commenters asserted that failing to specify protections against
disclosure for provisions outside of those listed in proposed Sec.
106.44(j) could chill students and employees from exercising their
rights under Title IX or this part with regard to the provisions for
which the Department did not specifically articulate nondisclosure
protections.
Many commenters raised specific concerns about disclosures of
information related to a student's or an employee's sexual orientation,
gender identity, or pregnancy or related conditions, stating that,
without more clarity as to the intended scope of protections against
third-party disclosures, the chilling effect on students or employees
seeking to exercise their rights under Title IX would hinder a
recipient's ability to operate its education program or activity free
from sex discrimination and deny the student equal access to education.
For example, one commenter asserted that recipients should not be
permitted to share personal details relating to students' healthcare
while coordinating or implementing remedies. One commenter asked the
Department to clarify how to protect the privacy and safety of LGBTQI+
students and employees in States where disclosure of records of their
sexual orientation or gender identity could result in harm and in
situations in which students or employees do not wish to have their
sexual orientation or gender identity disclosed. One commenter asked
the Department to emphasize that Title IX's protections preempt State
laws and override FERPA disclosures when disclosure would create a
hostile environment for LGBTQI+ students and to clarify that forced
disclosure of a student's sexual orientation or gender identity without
their consent violates Title IX.
Commenters also pointed out that recipients' or employees' actions
to comply with the recipient's obligations under proposed Sec. Sec.
106.40 and 106.57 could be thwarted by fear that disclosures of such
actions, which would be outside of the scope of proposed Sec.
106.44(j), could subject employees to civil or criminal penalties.
Thus, while many commenters supported the Department's proposed
relocation of the prohibition on disclosures to proposed Sec.
106.44(j) and out of the retaliation provision, the commenters felt
more clarity was needed with regard to prohibitions on disclosures
beyond the enumerated circumstances of proposed Sec. 106.44(j).
Numerous commenters asked the Department to add regulatory text stating
that nondisclosure protections apply to all information obtained by a
recipient in complying with this part.
Some commenters raised a concern that proposed Sec. 106.44(j)
would prevent disclosures required to comply with Federal grant award
terms or applications or with other Federal regulations. The commenters
asked the Department to add an exception to proposed Sec. 106.44(j) to
permit disclosures to a government entity as required by Federal law,
regulations, or grant award terms and conditions. Additionally, several
commenters asked the Department to address the interaction between
Title IX, FERPA, and HIPAA, and some commenters asked for clarification
regarding the disclosure of information that is permissible under FERPA
but could subject a student or employee to prosecution or create a
hostile environment by placing a student's health or safety in danger.
Some commenters opposed proposed Sec. 106.44(j) because they
believed that respondents are entitled to know the identity of all
complainants, witnesses, and other participants without limitation or
exception. Some commenters asked whether the respondent has the right
to remain anonymous. Other commenters raised concerns about the impact
this proposed provision would have on informal resolution procedures,
and one commenter argued that proposed Sec. 106.44(j) would impose an
impermissible ``gag order'' on parties. Finally, several commenters
believed that proposed Sec. 106.44(j) would keep parents uninformed of
their child's involvement in important matters, such as being a party
to a discrimination complaint.
Discussion: The Department acknowledges the numerous commenters who
expressed their views on proposed Sec. 106.44(j) and on the importance
of a recipient maintaining the confidentiality of information obtained
in the course of complying with this part. After careful consideration
of these comments, the barriers that disclosure of personally
identifiable information can create to a recipient's ability to
effectuate Title IX, and the various proposed provisions in the July
2022 NPRM related to disclosure prohibitions, the Department agrees
with commenters who asked the Department to provide clarity regarding a
recipient's obligation under Title IX to limit the disclosure of
information that a recipient obtains in the course of complying with
this part. The Department notes that commenters expressed concerns
related to disclosure that are discussed in several other sections of
this preamble, including the discussions of Sec. Sec. 106.31, 106.40,
106.44(c), and 106.44(g), underscoring the need for the Department to
clarify the scope of the limitations on disclosures in a consistent
manner. As a result, the Department has revised the provision so that
final Sec. 106.44(j) protects all personally identifiable information
obtained by a recipient in the course of complying with the
Department's Title IX regulations, with some exceptions as detailed
below, in order to protect the Title IX rights of students and
employees and to help ensure that a recipient's education program or
activity is free from sex discrimination.
This revision addresses the concern raised by many commenters that,
by limiting proposed Sec. 106.44(j) to specific and narrow
circumstances, the Department failed to provide protections from
disclosures in other circumstances and that such protections are
necessary to effectuate Title IX for the same reasons as those
articulated for the necessity of protecting the information within the
scope of proposed Sec. 106.44(j). For instance, the scope of proposed
Sec. 106.44(j) did not include implementing reasonable modifications
under Sec. 106.40(b)(3)(ii), but if a student made a complaint of sex
discrimination because a reasonable modification was not provided,
proposed Sec. 106.44(j) would have applied. However, the privacy
interest in personally identifiable information regarding a reasonable
modification is the same and not dependent on whether a complaint is
filed. Thus, after careful consideration of commenters' views regarding
the importance of disclosure protections for personal information
beyond the enumerated contexts of proposed Sec. 106.44(j), the
Department is revising proposed Sec. 106.44(j) because the concerns
that motivated proposed Sec. 106.44(j) are implicated by other
personal information obtained by a recipient in the course of its
compliance with Title IX.
The Department understands that a recipient cannot fulfill its duty
to operate its education program or activity free from sex
discrimination if members of a recipient's educational community are
not aware of the circumstances under which personally identifiable
information shared with a recipient as part of an exercise of their
rights under Title IX can be disclosed because there may be a chilling
effect on reporting or
[[Page 33621]]
participating in the grievance procedures that could then impair a
recipient's ability to carry out those obligations. See 87 FR 41452
(explaining that, to effectuate a recipient's duty under Title IX to
operate its education program or activity free from sex discrimination,
a recipient must refrain from disclosures that would be likely to chill
participation in the recipient's efforts to address sex
discrimination). This is true regardless of whether the recipient
obtains the information in the course of, for example, conducting an
informal resolution process, implementing grievance procedures,
providing supportive measures, coordinating or implementing remedies,
or providing reasonable modifications for pregnancy or related
conditions. By virtue of its obligations under Title IX, a recipient
will obtain highly sensitive personal information about individuals
participating in its education program or activity, including an
allegation that a specific person experienced or engaged in sex-based
harassment or information related to a specific person's pregnancy or
related condition, sexual orientation, gender identity, or other sex
characteristic. The Department maintains that when exercising any of
their rights or engaging in any of the procedures under Title IX or
this part, individuals--or, in the case of minors under the age of 18
in elementary schools or secondary schools, their parents or
guardians--have a reasonable expectation that related personally
identifiable information shared with a recipient generally will not be
disclosed to third parties.
As explained in the July 2022 NPRM, proposed Sec. 106.44(j) was
based on Sec. 106.71(a) of the 2020 amendments, which the Department
explained was added because unnecessarily exposing the identity of
complainants, respondents, and witnesses ``may lead to retaliation
against them.'' 87 FR 41453 (quoting 85 FR 30537). As explained in the
July 2022 NPRM, the Department sought to relocate the prohibition on
disclosures in Sec. 106.71(a) outside of the retaliation provision,
because ``it relates to a recipient's broader responsibilities to
address information about conduct that may constitute sex
discrimination in its program or activity.'' 87 FR 41452. The
Department believed that this move would reduce confusion and enhance
clarity. 87 FR 41453. Moreover, proposed Sec. 106.44(j) sought to
apply Sec. 106.71(a) of the 2020 amendments beyond parties and
witnesses to include other participants in the Title IX procedures,
such as advisors, parents, guardians, other authorized representatives,
interpreters, and notetakers. The Department posited that some of these
individuals may be reluctant to participate in Title IX processes
without the nondisclosure protections of proposed Sec. 106.44(j) and
explained that their ``lack of participation could . . . impair the
recipient's efforts to address information about conduct that may
constitute sex discrimination.'' 87 FR 41453. Final Sec. 106.44(j)
reflects these same concerns that unnecessary disclosures can have a
chilling effect on the reporting of sex discrimination that could
impair a recipient's ability to carry out its Title IX obligation to
maintain an educational environment free from sex discrimination.
Additionally, unauthorized disclosures of personally identifiable
information can lead to sex-based harm, including harassment,
retaliation, and other forms of discrimination.
The Department has adopted the phrase ``personally identifiable
information'' in final Sec. 106.44(j) rather than ``identity,'' which
was the term in proposed Sec. 106.44(j). While it is not necessary to
adopt a specific definition of the term ``personally identifiable
information'' for final Sec. 106.44(j) because of recipients' general
familiarity with the term, as in other contexts, personally
identifiable information is information that would tend to reveal the
identity of an individual. After consideration of the comments, the
Department realized that the term ``identity'' in proposed Sec.
106.44(j) would not sufficiently protect an individual's interest in
the confidentiality of private information, as it could be interpreted
to simply protect an individual's name rather than information that
would reveal an individual's identity. Thus, the Department adopted the
more comprehensive term of ``personally identifiable information'' in
the final regulations.
The Department emphasizes that this paragraph covers personally
identifiable information obtained by a recipient in the course of
complying with this part, which includes its obligation to maintain an
environment free from sex discrimination. Thus, a recipient may not
disclose any personally identifiable information related to, for
example, a supportive measure or a request for a reasonable
modification because of pregnancy or related conditions under Sec.
106.40(b)(3), unless the recipient has obtained consent or one of the
other exceptions is met, and, as with proposed Sec. 106.44(j), this
paragraph also applies to personally identifiable information obtained
by a recipient with regard to complainants, respondents, or witnesses,
or other participants in informal resolution processes, grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46.
Section 106.44(j) includes five exceptions to the general
prohibition on disclosure of personally identifiable information. The
Department reminds recipients that, even when an exception applies, a
disclosure cannot be made for retaliatory purposes per Sec. 106.71.
First, as in proposed Sec. 106.44(j)(1), final Sec. 106.44(j)(1)
permits disclosure when the recipient has obtained prior written
consent to the disclosure. The Department reworded this provision to
add the phrase ``from a person with the legal right to consent to the
disclosure'' to recognize that there are various Federal and State laws
that may govern who has the legal authority to consent to disclosure of
personally identifiable information depending on factors such as the
age of the person whose personally identifiable information is at
issue, whether the person whose personally identifiable information is
at issue is in attendance at an institution of postsecondary education,
and whether the personally identifiable information is in an education
record. Final Sec. 106.44(j)(1) clarifies that a recipient must obtain
consent from a person with legal authority under applicable law, and,
if that person is not the same person whose personally identifiable
information is at issue, the recipient need not also obtain consent
from the person whose personally identifiable information is at issue.
For example, if a parent has the legal right to consent to disclosure
of their minor child's personally identifiable information, the
recipient need only obtain consent from the parent. This exception is
to be read consistently with FERPA, and if the personally identifiable
information is in an education record, the consent requirements of
FERPA apply. Under FERPA, if a student is under the age of 18 and
attending an elementary school or a secondary school, the right to
consent to the disclosure lies with the student's parent or guardian.
If the personally identifiable information is not in an education
record, then there may be applicable State law requirements governing
consent to the disclosure of personally identifiable information.
The Department added the second exception--final Sec.
106.44(j)(2)--to address commenters' confusion regarding disclosures to
parents. As stated elsewhere in this preamble, the
[[Page 33622]]
Department supports strong, communicative relationships between
recipients and parents. This exception clarifies that this paragraph
does not prohibit any disclosure to a parent, guardian, or other
authorized legal representative who has the legal right to receive
disclosures on behalf of the person whose personally identifiable
information is at issue. As with final Sec. 106.44(j)(1), this
provision is intended to allow for application of legal rights
conferred by other Federal laws and regulations, such as FERPA, and by
applicable State laws. For example, if a student is a minor under State
law but an ``eligible student'' under FERPA because they are attending
a postsecondary institution, FERPA does not permit disclosures to
parents unless the student provides prior written consent or one of
FERPA's permissive exceptions to FERPA's written consent requirement
applies. However, for students under the age of 18 years old in
elementary school or secondary school, the student's parent has the
legal right under FERPA to inspect and review their child's education
record.
Final Sec. 106.44(j)(3) is consistent with proposed Sec.
106.44(j)(4)--to carry out the purposes of the Department's Title IX
regulations, including action taken to address conduct that reasonably
may constitute sex discrimination under Title IX in the recipient's
education program or activity. The Department added the word
``reasonably'' for consistency with these final regulations. As an
example of final Sec. 106.44(j)(3), in the postsecondary context, a
recipient may inform a professor of a supportive measure that a student
is receiving that is related to the professor's classroom to ensure its
implementation, but the recipient would not be permitted to disclose
personally identifiable information about any related complaint of sex-
based harassment that is not necessary to implement the supportive
measure, unless the student whose personally identifiable information
is at issue provided their prior written consent or one of the other
exceptions is applicable. For more information about nondisclosure
protections regarding supportive measures, see the discussion of Sec.
106.44(g)(5). Additionally, Sec. 106.44(j)(3) permits disclosures
required or permitted by Sec. Sec. 106.44, 106.45, or 106.46 because
such disclosures carry out the purposes of 34 CFR part 106 by fully
implementing Title IX's nondiscrimination mandate and ensuring fair and
equitable resolution of complaints of sex discrimination. For example,
this exception allows disclosures under Sec. Sec. 106.45(f)(4) and
106.46(e)(6), which require recipients to provide parties with an equal
opportunity to access to the evidence that is relevant to the
allegations of sex discrimination and not otherwise impermissible, and
under Sec. 106.46(e)(3), which allows, but does not require, a
postsecondary institution to permit parties to have persons other than
the party's advisor present at any meeting or proceeding. As explained
in the discussion of Sec. 106.46(e)(3), the Department notes that,
even though such a disclosure is permitted by Sec. 106.44(j)(3), the
presence of that person must not lead to a disclosure of evidence that
would conflict with FERPA.
The fourth exception--final Sec. 106.44(j)(4)--is based on
proposed Sec. 106.44(j)(3), but the Department modified this exception
to cover Federal law, Federal regulations, or the terms and conditions
of a Federal award, including a grant award or other funding agreement.
As also explained in the discussion of Sec. 106.44(g)(5), the
Department agrees with commenters who were concerned that proposed
Sec. 106.44(j)(3) would have been interpreted as prohibiting
disclosures required by the terms and conditions of a Federal grant or
award, which was not the Department's intent. The Department thus added
language in final Sec. 106.44(j)(4) to clarify the permissibility of
such disclosures. The Department notes that the terms and conditions of
a Federal award, including a grant award or other funding agreement,
must also be in accordance with FERPA in order for a recipient.to make
a disclosure under such award. The Department has focused this
exception on Federal law and addresses State law in the fifth
exception. Additionally, the Department added language specifying
Federal regulations to this exception to address commenters' questions
about the interaction between Title IX, FERPA, and HIPAA, and their
implementing regulations, and to clarify that this exception permits
disclosure of personally identifiable information that is required
under those statutes, as well as other Federal statutes, and their
accompanying regulations. Permissive FERPA disclosures are generally
permitted under Sec. 106.44(j)(5), as discussed next.
Final Sec. 106.44(j)(5), consistent with proposed Sec.
106.44(j)(2), allows disclosures that are permitted, but not required,
under FERPA, to the extent such disclosures are not otherwise in
conflict with Title IX or the Department's Title IX regulations. The
Department added this clarifying language in response to commenters'
questions about disclosures that may be permitted under FERPA but that
would nonetheless conflict with Title IX, such as by causing sex-based
discrimination; by chilling reporting under Title IX; for retaliatory,
harassing, or other discriminatory purposes; or by hindering the
recipient's ability to operate its education program or activity free
from sex discrimination. For example, FERPA permits, but does not
require, a recipient to disclose personally identifiable information
from a student's education record to third parties without prior
written consent if the disclosure meets one or more of the exceptions
outlined in 20 U.S.C. 1232g(b), (h) through (j), or 34 CFR 99.31.\39\
Even if one of those exceptions is met, the recipient would nonetheless
be prohibited from making that disclosure if, for example, the
disclosure was for the purpose of retaliating against the student whose
personally identifiable information was at issue. In response to
commenters' questions, the Department notes that disclosure of
personally identifiable information that creates a hostile environment
as defined under Sec. 106.2 would be prohibited under these
regulations. While determinations of a hostile environment would be
made following a case-by-case review of specific facts, it could be a
violation of this provision if a school were to disclose personally
identifiable information about a student's sexual orientation or gender
identity broadly to other students or employees, which resulted in the
student experiencing sex-based harassment.
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\39\ The Department has previously issued guidance to remind
school officials of their obligations to protect student privacy
under FERPA. See, e.g., U.S. Dep't of Educ., Student Privacy Policy
Office, Family Educational Rights and Privacy Act: Guidance for
School Officials on Student Health Records (Apr. 2023), https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FamilyEducationalRightsandPrivacyAct-GuidanceforSchoolOfficialsonStudentHealthRecords.pdf.
---------------------------------------------------------------------------
Additionally, final Sec. 106.44(j)(5) permits disclosures required
by State or local law to the extent such disclosures are not otherwise
in conflict with Title IX or the Department's Title IX regulations. The
Department added this language to the regulatory text in response to
commenters' questions about the application of State and local laws and
regulations regarding disclosures of personally identifiable
information obtained by a recipient in the course of complying with
Title IX. As explained in the discussion of Sec. 106.6(b) and the July
2022 NPRM, State and local laws that conflict with
[[Page 33623]]
Title IX and 34 CFR part 106 are preempted, see Sec. 106.6(b); 87 FR
41405, and these final regulations do not alter the application of that
well-established doctrine to Title IX or this part. Consistent with
Sec. 106.6(b) and with this paragraph, disclosures required under
State or local law that would prevent or impede a recipient from
carrying out its Title IX obligations as enumerated in this part are
not exempt from the nondisclosure obligation under 106.44(j). However,
to the extent disclosures required under State or local law do not
prevent a recipient from carrying out its Title IX obligations, Sec.
106.44(j)(5) clarifies that such disclosures are generally permitted.
For example, this exception would permit recipients to disclose
information about an employee accused of sexually assaulting a student
pursuant to State mandatory reporting laws because doing so does not
conflict with Title IX or 34 CFR part 106. As with the other provisions
of this paragraph, a recipient must ensure compliance with FERPA or any
other applicable Federal laws and regulations in making such
disclosures.
With regard to other comments received on proposed Sec. 106.44(j),
the Department disagrees with the assertion that respondents are
entitled to know the identity of all complainants, witnesses, and other
participants without limitation, as that is not consistent with the
Department's longstanding approach,\40\ including the approach taken in
the 2020 amendments. See 85 FR 30133-35, 30537; 34 CFR 106.71(a). For
example, a complainant may be able to receive supportive measures
before the respondent knows their identity. However, when due process
necessitates revealing the identity of a complainant or witness to the
respondent, Sec. 106.44(j)(3) permits such disclosures, so the
commenters' concern is unwarranted. See discussion of Sec.
106.45(b)(5). Further, the Department disagrees with concerns about the
application of nondisclosure protections to the informal resolution
process, as those processes can be an important aspect of a recipient's
efforts to address sex discrimination, and a chilling effect on
participation in informal resolution processes could undermine a
recipient's ability to effectuate Title IX. In response to some
commenters' question regarding a respondent's right to remain
anonymous, the Title IX regulations do not guarantee a right of
anonymity and, as explained above, Sec. 106.44(j)(4) permits
disclosures under Sec. Sec. 106.44, 106.45, and 106.46. Finally, the
Department disagrees that Sec. 106.44(j) constitutes a ``gag order''
on parties, as this provision applies to disclosures by recipients. The
Department emphasizes that students, employees, and third parties
retain their First Amendment rights, and Sec. 106.44(j) does not
infringe on these rights. Section 106.6(d) of the Title IX regulations
explicitly states that nothing in these regulations requires a
recipient to restrict rights that would otherwise be protected from
government action by the First Amendment. For additional consideration
of the First Amendment, see the discussion of Hostile Environment Sex-
Based Harassment--First Amendment Considerations (Sec. 106.2) (Section
I.C).
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\40\ See 2001 Revised Sexual Harassment Guidance, at 16 (``In
all cases, schools should make every effort to prevent disclosure of
the names of all parties involved, the complainant, the witnesses,
and the accused, except to the extent necessary to carry out an
investigation.'').
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Changes: The Department altered the heading of this paragraph to
provide more specificity as to the nature of the prohibition that it
addresses. Additionally, the Department modified Sec. 106.44(j) to
state that the prohibition on disclosures applies to any personally
identifiable information obtained in the course of complying with this
part. Section 106.44(j) includes five exceptions that may be applied to
allow disclosures that do not conflict with Title IX or this part. The
Department added language to clarify that Sec. 106.44(j)(1) requires a
recipient to obtain prior written consent to the disclosure from a
person with the legal right to consent to the disclosure. Section
106.44(j)(2) affirms the permissibility of disclosures to a parent,
guardian, or authorized legal representative with the legal right to
receive disclosures on behalf of the person whose personally
identifiable information is at issue. Section 106.44(j)(3) adds the
word ``reasonably'' before the words ``may constitute sex
discrimination.'' Section 106.44(j)(4) specifies that disclosures
required by Federal law, Federal regulations, or the terms and
conditions of a Federal award, including a grant award or other funding
agreement, are permitted. Section 106.44(j)(5) clarifies that
recipients may make disclosures that are required by State or local law
or are permitted by FERPA to the extent such disclosures are not
otherwise in conflict with Title IX or this part.
11. Section 106.44(k) Informal Resolution Process
General Support and Opposition
Comments: Some commenters supported proposed Sec. 106.44(k) to the
extent that informal resolution is fully voluntary, informed, and
applies to student-to-student complaints. Other commenters supported
the availability of an informal resolution process for sex
discrimination complaints for a variety of reasons, including because,
the commenters asserted, it is an effective tool to address sex-based
harassment when appropriate; empowers the parties to find an effective
resolution; supports complainants and facilitates their recovery;
prioritizes safety for the parties and the campus; furthers the purpose
of Title IX by helping a recipient address inequities; encourages
reporting, accountability, and access to support services; recognizes
the significant training and expertise that many student affairs
practitioners have developed in these forms of resolution; is fair to
both parties; and reduces litigation. Several commenters also
appreciated that Sec. 106.44(k) would provide an alternative to
recipient grievance procedures that would meaningfully address sex
discrimination in nuanced ways that a recipient's grievance procedures
may not.
Several commenters supported informal resolution on the ground that
it would provide recipients more discretion and reduce burdens,
particularly on small postsecondary institutions, by allowing them to
tailor their response to the specific needs of the parties. The
commenters added that the proposed regulations would improve
implementation of Title IX; appropriately facilitate a fair and
mutually agreeable outcome that is less complicated and confusing,
while complying with both State and Federal law; and allow a recipient
to respond to, resolve, and reduce the number of incidents of sexual
harassment in its education program or activity more efficiently.
Some commenters suggested that the Department change ``informal
resolution'' to ``alternative resolution,'' which they asserted would
avoid implying that these processes and outcomes are less legitimate
than a recipient's grievance procedures or causing a recipient to
underappreciate the training, skill, preparation, and formality needed
to appropriately and successfully facilitate a process outside a
recipient's grievance procedures, such as a restorative justice process
that addresses sex discrimination generally, and sex-based harassment
and violence specifically. Some commenters urged the Department to
retain the provisions related to informal resolution in the 2020
amendments, which some argued provided a recipient more autonomy to
address complaints of sex
[[Page 33624]]
discrimination in a substantive manner that considers the parties'
concerns while allowing a recipient to focus on educating, counseling,
and mentoring students. Some commenters urged the Department to retain
Sec. 106.45(b)(9) from the 2020 amendments, which requires a formal
complaint and written consent from both parties before a recipient can
offer informal resolution.
One commenter believed that, under Sec. 106.44(a) of the proposed
regulations, every report of sex discrimination would require a
recipient to initiate its grievance procedures, regardless of the
severity of the reported incident. The commenter asserted that many
reports of sex discrimination, including possible different treatment,
could be handled appropriately by a recipient's faculty or staff
without invoking the recipient's grievance procedures. The commenter
suggested that the Department provide a mechanism for informal
resolution of less serious reports of sex discrimination when the
complainant does not wish to resolve the complaint using the
recipient's grievance procedures. Another commenter stated that
informal resolution would be most appropriate for less serious
allegations.
One commenter asked the Department to specify what steps and
requirements would be required for an informal resolution to proceed,
in the absence of a formal complaint. Another commenter asserted that
the proposed regulations provide insufficient guidelines for how or
when an informal resolution would be appropriate, including determining
if informal resolution is in the best interest of the student, rather
than the education program or activity. Commenters requested clearer
guidelines on how alternative forms of addressing complaints, such as
mediation, would work. Other commenters expressed concern that Sec.
106.44(k) lacked specificity as to what informal resolution should
include or exclude, which they asserted would leave complainants
vulnerable to inaction on the part of the recipient. Another commenter
stated that the Department should either earmark funding for a
recipient to develop informal resolution processes or require a
recipient to develop informal resolution processes that meet certain
requirements.
Some commenters asked the Department to broaden proposed Sec.
106.44(k) to permit a respondent who has accepted responsibility for
violating a recipient's Title IX policy to pursue informal resolution,
and one commenter also asked that the Department allow a respondent to
agree to sanctions when they accept responsibility within an informal
resolution process. One commenter, a trade group for Title IX
Coordinators, interpreted the proposed regulations as foreclosing
informal resolution of a complaint if there is a determination that a
respondent is responsible for sex discrimination. The commenter stated
that this result would be inconsistent with the practice of many
recipients and its own recommended framework for informal resolution,
which allows informal resolution as a means of obtaining acceptance of
responsibility or a demonstration of accountability for harmful
behavior.
One commenter urged the Department to provide a school district
with broad discretion to undertake informal resolution processes that
are consistent with Title IX, comply with relevant State law, and are
age appropriate. Another commenter alternatively suggested that the
Department clarify that any prohibition or limitation on informal
resolution in Sec. 106.44(k) would apply only to a postsecondary
institution. The commenter asserted that such clarification is needed
based on the commenter's interpretation that proposed Sec.
106.44(g)(2) would prohibit supportive measures that burden a
respondent during informal resolution, regardless of whether a
recipient determines such measures to be appropriate, which the
commenter stated would frustrate the ability of an elementary school or
secondary school to comply with Sec. 106.44(a).
Some commenters urged the Department to clarify that the Title IX
Coordinator has discretion to initiate or resume grievance procedures
if the respondent fails to satisfy the terms of the informal resolution
or if the Title IX Coordinator determines that the informal resolution
was unsuccessful in stopping the discriminatory conduct or preventing
its recurrence.
One commenter recommended that the Department provide guidance for
how a recipient may resolve a ``structural complaint'' about the
recipient through informal resolution and to what extent a recipient
may participate in informal resolution. The commenter stated many
complaints allege sex discrimination based on the structure of a
recipient's policy, practices, or environment and would not necessarily
align with either informal resolution or a recipient's grievance
procedures outlined in the proposed regulations. The commenter noted
that proposed Sec. 106.44(k) is silent as to whether the recipient can
have a participatory role in informal resolution and asserted that many
recipients play a role in informal resolution to ensure equity across
complaints.
One commenter recommended that the Department replace ``ensure''
with ``designed to ensure'' in proposed Sec. 106.44(k)(1) to
acknowledge that a recipient may not be able to effectively ensure that
sex discrimination does not continue or recur despite its best efforts.
Another commenter recommended that the Department change ``Title IX
Coordinator'' to ``recipient'' in Sec. 106.44(k)(1) to allow a
recipient to designate another official to take appropriate steps to
ensure that sex discrimination does not continue or recur.
Discussion: The Department acknowledges commenters' support for the
informal resolution process provided by Sec. 106.44(k). The Department
acknowledges the comments regarding the use of the term ``informal
resolution,'' but declines to substitute another term instead. As
indicated in the preamble to the 2020 amendments, the Department
understands the term ``informal resolution processes'' to have the same
meaning as ``alternative dispute resolution processes,'' with both
referring to the processes that have been widely used as a substitute
for the formal process. 85 FR 30400. Informal resolution accordingly
may encompass a broad range of conflict resolution strategies. Id. at
30401. As the Department further explained in the 2020 preamble, by
referring to these processes as ``informal,'' it is not the
Department's intent to suggest that the personnel facilitating such
processes have any less robust training and independence or that a
recipient should take allegations of sex discrimination any less
seriously than they would in a formal grievance proceeding. Id. For
that reason we have retained the requirement formerly found at Sec.
106.45(b)(1)(iii), now Sec. 106.44(k)(4), that any person facilitating
informal resolutions must be appropriately trained under Sec.
106.8(d)(3). We also believe the term ``informal resolution'' should be
broadly familiar to recipients and parties and draws a helpful contrast
with grievance procedures required by Sec. 106.45, and if applicable
Sec. 106.46.
The Department disagrees that the proposed changes to the
regulations governing informal resolution would undermine a recipient's
autonomy or interfere with its educational mission. The 2020 amendments
prohibited a recipient from offering informal resolution in the absence
of a formal complaint. These final regulations will provide a recipient
with additional discretion to offer informal resolution
[[Page 33625]]
under more circumstances, including without requiring the complainant
to make a complaint requesting that the recipient initiate its
grievance procedures. A recipient is in the best position to determine
whether an informal resolution process would be appropriate based on
the facts and circumstances, except that a recipient must not offer
informal resolution in two situations: when there are allegations that
an employee engaged in sex-based harassment of an elementary school or
secondary school student or when such a process would conflict with
Federal, State, or local law. We address those limits below in the
discussion of Sec. 106.44(k)(1).
As discussed in the July 2022 NPRM, limiting a recipient's ability
to offer informal resolution as an alternative to grievance
procedures--by, for example, requiring a complainant to request
initiation of grievance procedures before a recipient can offer
informal resolution--would undermine the Department's goal of ensuring
that, to the extent appropriate, a recipient can provide a range of
effective options that meaningfully address and resolve allegations of
sex discrimination consistent with Title IX. 87 FR 41455. In response
to the commenter who asked what level of investigation would be
required to proceed with informal resolution without a complaint, the
Department clarifies that these regulations afford a recipient
discretion to offer the parties an informal resolution process at any
time before determining whether sex discrimination occurred, including
before an investigation commences, as well as during the course of an
investigation. Requiring that a complaint be made or an investigation
be conducted prior to offering an informal resolution process could
deter some students from seeking any resolution of alleged sex
discrimination and prevent a recipient from using an effective option
for resolving such allegations in those cases. If a party pursues an
informal resolution process without having made a complaint, Sec.
106.44(k)(3)(iii) specifies that they retain the right to withdraw from
the informal resolution process prior to agreeing to a resolution and
to initiate or resume the recipient's grievance procedures. Further, if
an investigation has commenced under the grievance procedures, and if
the circumstances in which informal resolution is prohibited or may be
declined by the Title IX Coordinator do not apply, a party could still
choose to participate in informal resolution before a determination
whether sex discrimination occurred has been made.
Contrary to assertions by at least one commenter, Sec. 106.44(a)
does not require a recipient to initiate its grievance procedures for
every report of sex discrimination. Rather, Sec. 106.44(a)(1) requires
a recipient with knowledge of conduct that reasonably may constitute
sex discrimination in its education program or activity to respond
promptly and effectively, and Sec. 106.44(a)(2) clarifies that a
recipient must take the actions outlined in Sec. 106.44 (b)-(k) to
comply with Title IX's statutory obligation to operate its education
program or activity free from sex discrimination. Under paragraph
(f)(1)(iii)(A), the Title IX Coordinator must notify the complainant
or, if the complainant is unknown, the individual who reported the
conduct, of the grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, and the informal resolution process under
Sec. 106.44(k), if available and appropriate. The Title IX Coordinator
is not required to initiate grievance procedures for every report.
Additional information regarding the Title IX Coordinator's obligations
under Sec. 106.44(f) are discussed above in this preamble.
Although the Department does not have the authority to earmark
funding for recipients to develop informal resolution processes, the
Department provides grants that may be used to implement programs such
as restorative justice and similar programs.\41\ More broadly, the
Department offers technical assistance through the National Center on
Safe and Supportive Learning Environments and the Title IV-A Technical
Assistance Center that may also help a recipient develop informal
resolution processes. Additionally, the Department declines to mandate
specific requirements for an informal resolution process beyond those
stated in the regulations, to provide a recipient discretion to offer
an informal resolution process that can be structured to accommodate
the particular needs of the parties, the recipient, and the particular
circumstances of the complaint in the most effective manner.
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\41\ See, e.g., 20 U.S.C. 7111-7122 (codifying Student Support
and Academic Enrichment Grants under Title IV, Part A of the Every
Student Succeeds Act); 20 U.S.C. 7281 (authorizing Project School
Emergency Response to Violence (SERV) program); 20 U.S.C. 7271-7275
(authorizing grants under the Promise Neighborhoods and Full-Service
Community Schools programs); 20 U.S.C. 1138 (authorizing grant
program to improve postsecondary education opportunities for
nontraditional students).
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The Department appreciates the opportunity to clarify that, under
these regulations, a determination whether sex discrimination occurred
can necessarily only be made at the conclusion of grievance procedures
consistent with Sec. 106.45, and if applicable Sec. 106.46. Hence, it
is the Department's view that an admission, alone, outside the context
of grievance procedures consistent with Sec. 106.45, and if applicable
Sec. 106.46, is not a determination whether sex discrimination
occurred. Accordingly, nothing in Sec. 106.44(k) prohibits a recipient
from offering an informal resolution process in which a respondent may
accept responsibility or accountability for sex discrimination or harm
caused. The Department intends for the limitation regarding such
determinations in Sec. 106.44(k)(1)--that a recipient may offer an
informal resolution process ``prior to determining whether sex
discrimination occurred'' under Sec. 106.45, and if applicable Sec.
106.46--to clarify at what point a recipient may offer informal
resolution, but not to limit the types of informal resolution a
recipient may offer.
The Department also appreciates the opportunity to clarify that
Sec. 106.44(g)(2) does not prohibit terms that are similar to
supportive measures from being agreed to as part of an informal
resolution. Additionally, Sec. 106.44(k)(5) states that potential
terms of an informal resolution agreement may include but are not
limited to, restrictions on contact and 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 procedure. See 87 FR 41456.
Additionally, the Department appreciates the opportunity to clarify
that, as stated in Sec. 106.44(k)(3)(iii), 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. If a party breaches the resolution agreement or if the
recipient has other compelling reasons, such as if it learns of any
fraud by a party in entering into the agreement, the recipient may void
the informal resolution agreement and initiate or resume grievance
procedures. See 87 FR 41455. However, this is only one example, and
there may be other situations in which a recipient could similarly
decide to initiate or resume its grievance procedures, as long as the
recipient exercises its discretion in a manner that is equitable to the
parties
[[Page 33626]]
and otherwise complies with these final regulations.
In the July 2022 NPRM, the Department explained that informal
resolution would not be available in sex discrimination complaints that
do not involve a student, employee, or third-party respondent. 87 FR
41464. This is in part because Sec. 106.45(a) states that the
requirements related to a respondent apply only to sex discrimination
complaints alleging that a ``person'' violated the recipient's
prohibition on sex discrimination, and a complaint that a recipient's
policy or practice discriminates on the basis of sex involves an
allegation against the recipient itself--not a person. In many
circumstances, upon notification of a potentially discriminatory policy
or practice, the recipient may resolve the matter under Sec.
106.44(f)(1), which requires a Title IX Coordinator, when notified of
conduct that reasonably may constitute sex discrimination under Title
IX or this part, to take the enumerated actions to promptly and
effectively end any sex discrimination in its education program or
activity, prevent its recurrence, and remedy its effects. These actions
include, under Sec. 106.44(f)(1)(vii), a requirement that the Title IX
Coordinator take ``other appropriate prompt and effective steps,'' in
addition to steps associated with remedies provided to an individual
complainant, if any, to ensure that sex discrimination does not
continue or recur within the recipient's education program or activity.
The Department acknowledges the commenters' request for guidelines
for how and when a recipient can decide whether informal resolution
would be appropriate. With the exception of when there is an allegation
that an employee engaged in sex-based harassment of an elementary
school or secondary school student or when an informal resolution
process would conflict with applicable Federal, State, or local law, a
recipient has discretion to determine when informal resolution is not
appropriate, notwithstanding the parties' consent. In making this
determination, a recipient may consider the factors a Title IX
Coordinator must consider when determining whether to initiate a
complaint of sex discrimination, which are enumerated in Sec.
106.44(f)(1)(v)(A).
The Department declines to replace ``ensure'' with ``designed to
ensure'' in Sec. 106.44(k)(1) because the regulations as stated fully
implement Title IX's nondiscrimination mandate. The Department also
declines to change ``Title IX Coordinator'' to ``recipient'' in
proposed Sec. 106.44(k)(1) because the obligations are consistent with
those set forth in Sec. 106.44(f). Further, as explained in more
detail in the discussion of Sec. 106.8(a)(2), a recipient may delegate
specific duties to one or more designees.
Changes: Consistent with revisions to Sec. 106.44, the Department
has modified Sec. 106.44(k)(1)(i) to add the word ``reasonably'' with
respect to information about conduct that may constitute sex
discrimination under Title IX or this part.
Section 106.44(k)(1) Discretion To Offer Informal Resolution
Comments: Some commenters supported a recipient's discretion to
decline to offer informal resolution under proposed Sec. 106.44(k)(1).
Other commenters expressed support for safeguards in the proposed
regulations, such as the prohibition on the use of informal resolution
in cases of employee-to-student sex discrimination and when informal
resolution would conflict with Federal, State, or local law, and the
discretion afforded by proposed Sec. 106.44(k)(1) to decline to offer
informal resolution when, for example there is evidence of actual or
potential coercion or when not appropriate in an elementary school or
secondary school setting. One commenter agreed that there may be
circumstances in which informal resolution would be inappropriate, such
as when there is an ongoing threat of danger to others, but the
commenter encouraged the Department to specify these circumstances in
the final regulations to help ensure complainants are able to direct
the informal resolution process within appropriate constraints of their
communities' and own safety. Some commenters opposed the use of
informal resolution for all sex discrimination cases, including in
cases of sexual harassment or assault, because of the seriousness of
the conduct necessarily involved in sex discrimination cases, potential
negative impacts on the complainant, and potential risk to the
community from a repeat offender.
Several commenters noted that courts have recognized the importance
of informal resolution, argued that a recipient should not have
discretion to decline to offer informal resolution over the preference
of the parties, and urged the Department to modify proposed Sec.
106.44(k)(1)(i) to restrict a recipient's discretion to deny a party's
request for informal resolution.
One commenter asserted that denying informal resolution would
impede a recipient's ability to address sex discrimination, arguing
that informal resolution is more likely to reduce future harm than
sanctions available through grievance procedures and that some people
may forgo filing a complaint if informal resolution is not an option.
Prohibition on Informal Resolution for Student Complaints Against
Employee Respondents
Some commenters urged the Department to retain current Sec.
106.45(b)(9)(iii), which prohibits informal resolution for complaints
in which an employee is alleged to have sexually harassed a student.
One commenter noted that the regulatory text in proposed Sec.
106.44(k)(1) would prohibit informal resolution in all cases in which
an employee allegedly engaged in sex discrimination against a student,
whereas the statement in the July 2022 NPRM explaining this proposed
provision stated that the provision would prohibit informal resolution
in cases in which an employee allegedly engaged in sex-based harassment
(not all forms of sex discrimination) against a student. The commenter
suggested there might be a conflict between the proposed regulatory
text and the July 2022 NPRM preamble language.
Other commenters urged the Department to remove or revise the
clause in proposed Sec. 106.44(k)(1) that would prohibit informal
resolution of complaints alleging that an employee engaged in sex
discrimination toward a student. Some commenters argued that the
prohibition would be overly broad and would bar informal resolution in
contexts in which it could be effective and appropriate, particularly
for less severe allegations. Other commenters supported such a
restriction for allegations that an employee sexually harassed an
elementary school or secondary school student but objected to barring
voluntary participation in informal resolution at a postsecondary
institution because such a prohibition would deprive an adult
complainant of autonomy. One commenter also asserted that presenting a
student complainant with fewer options would further decrease already
low reporting rates of employee-to-student sex discrimination
allegations.
Some commenters believed that the prohibition on informal
resolution for employee-to-student sex discrimination complaints in
proposed Sec. 106.44(k)(1) is based on the Department's incorrect
assumption that informal resolution processes are less effective,
rigorous, and legitimate, and are more prone to power imbalances than a
recipient's grievance procedures. The commenter also asserted that
students have reached informal resolutions that effectively
[[Page 33627]]
addressed behavior and held respondents accountable when a recipient
invested in skilled facilitators and created procedures based on
developed practices, such as shuttle negotiation or restorative
justice.
Another commenter stated that power imbalances between students and
employees can be particularly heightened for a student with multiple
and overlapping identities, in a graduate program, or in a small or
specialized department or program and such a student may view informal
resolution as preferable to a more formal and adversarial process.
Several commenters noted that other safeguards exist to prevent
unfair informal resolution of employee-to-student complaints. One
commenter, a postsecondary institution, noted that its own policy
includes a prohibition on requiring face-to-face mediation in any case
that involves physical or sexual violence or an employee respondent in
a position of authority over the complainant. Another commenter noted
that proposed Sec. 106.44(k)(2) and (3)(iii) would create safeguards
to address concerns related to power imbalances or unfair outcomes. The
commenter also noted that proposed Sec. 106.44(k)(1)(i) would
otherwise allow a recipient to decline to offer informal resolution,
including if it determined that the power differential was too great.
One commenter noted that an appropriately trained Title IX Coordinator
or informal resolution facilitator could rely on the same factors
outlined in proposed Sec. 106.44(k)(1) and (2) to assess whether a
student-to-employee complaint would be suitable for informal
resolution.
A number of commenters asked for clarification about whether
informal resolution would be available for student complaints against
student-employee respondents in light of the lesser power differential
between a student and student-employee.
Requests for Modifications or Clarification
Some commenters recommended that the Department modify proposed
Sec. 106.44(k)(1) to provide a recipient more discretion in
determining when informal resolution would be appropriate, as long as
the recipient documents the parties' voluntary and informed consent to
participate in such procedures.
Some commenters asked for clarification as to how to assess the
future risk of harm to others for purposes of proposed Sec.
106.44(k)(1)(ii). Another commenter recommended that the Department
strike proposed Sec. 106.44(k)(1)(ii) because it contains an example
that the commenter believed could be read as exhaustive rather than
illustrative. One commenter urged the Department to modify Sec.
106.44(k)(1) to allow a recipient to deny a request for informal
resolution only when the recipient reasonably determines that the
respondent presents an immediate risk of harm to others. Another
commenter urged the Department to revise Sec. 106.44(k)(1) to require
a recipient to consider the wishes of the parties before declining to
offer informal resolution and amend the preamble to urge a recipient to
consider the likelihood that an allegation would be meaningfully
investigated without the complainant's participation. Another commenter
suggested that the Department add ``or where an informal resolution
process may contribute to increased trauma for any party'' to the end
of proposed Sec. 106.44(k)(1)(ii) as an example of when informal
resolution of a complaint would be inappropriate.
One commenter recommended that the Department offer examples in
which informal resolution may be inappropriate, such as with
contractors, outside vendors, or when the allegations are based on
events sponsored by the recipient that take place off campus.
Discussion: The Department acknowledges the support for, and
comments related to, the circumstances under which a recipient has
discretion to offer informal resolution under Sec. 106.44(k)(1).
The Department is persuaded by commenters who argued that the
proposed prohibition regarding allegations that an employee engaged in
sex discrimination toward a student in proposed Sec. 106.44(k)(1)
would be overly broad. The Department agrees that this limit on
recipient discretion to offer informal resolution options would create
an unacceptably high risk of dissuading complainants who do not want to
undergo grievance procedures from making a complaint and of frustrating
a recipient's ability to address sex discrimination in its education
program or activity. The Department also agrees that in some cases the
parties and recipient may view informal resolution as a better avenue
to mitigate power imbalances between a student and an employee. The
Department agrees that other safeguards in Sec. 106.44(k), such as the
recipient's discretion, the requirement that participation be
voluntary, and the right to withdraw, will ensure that adult
participants are protected from an unfair process. The Department is
persuaded that the prohibition would be more appropriate as applied in
the elementary school and secondary school context, given the unique
power dynamics between a minor student and an adult employee. The
Department is also persuaded that the prohibition is more appropriately
limited to the context of sex-based harassment--in which there is a
unique risk of physical harm and associated severe emotional trauma. As
such, the Department has revised Sec. 106.44(k)(1) to prohibit
informal resolution if the complaint includes an allegation that an
employee engaged in sex-based harassment of an elementary school or
secondary school student. By removing the prohibition as to
postsecondary students, the Department has also addressed concerns and
questions regarding the application of the prohibition to student-
employees.
The Department disagrees with commenters who objected to otherwise
giving a recipient the discretion to decide when to offer informal
resolution. As described by many commenters, informal resolution is an
important avenue for addressing allegations of sex discrimination. The
final regulations give a recipient discretion to offer informal
resolution within the bounds set forth in Sec. 106.44(k). The
Department disagrees that Sec. 106.44(k) grants a recipient unfettered
discretion to offer, or decline, informal resolution under these final
regulations. As explained in the July 2022 NPRM, even though Sec.
106.44(k) will entrust the decision about whether to offer informal
resolution to the recipient's discretion, that discretion will remain
subject to important guardrails. 87 FR 41454. Consistent with Sec.
106.44(f)(1)(i), a recipient must exercise this discretion in a manner
that treats the parties equitably. Moreover, as discussed below,
recipients: must not require or pressure the parties to participate in
an informal resolution process; must obtain the parties' voluntary
consent to the informal resolution process and must not require waiver
of the right to an investigation and determination of a complaint as a
condition of enrollment or continuing enrollment, or employment or
continuing employment, or exercise of any other right; must provide
notice to the parties that describes the allegations, the requirements
of the informal resolution process, the right to withdraw from the
informal resolution process and initiate or resume the recipient's
grievance procedures prior to agreeing to a resolution, the effect of
entering into a resolution agreement, the potential terms of a
resolution agreement, and the information that will be maintained and
could be disclosed; and must ensure that facilitators are
[[Page 33628]]
trained and do not have a conflict of interest or bias. These
guardrails will ensure that informal resolution is an effective means
of addressing sex discrimination prohibited under Title IX.
The Department appreciates the opportunity to clarify that Sec.
106.44(k)(1)(ii) is intended to identify only one illustrative
situation in which a recipient might reasonably decide not to offer
parties the option of informal resolution. As the wording of Sec.
106.44(k)(1)(ii) indicates (``include but are not limited to''), there
may be other circumstances when a recipient may also decline to offer
the parties informal resolution, depending upon the facts and
circumstances. The Department declines to strike Sec. 106.44(k)(1)(ii)
because, contrary to the commenters' concern, the language of that
provision clearly conveys that the circumstances identified there are
not exhaustive. There may be other circumstances in which a recipient
would properly decline to allow informal resolution, and nothing in
Sec. 106.44(k) will bar a recipient from doing so. Additionally, in
response to commenters' requests for clarification as to how to assess
the future risk of harm to others, the Department emphasizes that a
recipient has flexibility to structure a process to determine how it
makes this assessment, as well as whether such an assessment is
necessary in a particular circumstance. Notwithstanding this
discretion, such an assessment may depend on the particular allegations
that the parties seek to resolve informally and may take into account
relevant factors, such as whether either party has a history of
engaging in violent conduct or made credible threats of self-harm or
harm to others.
There may be cases in which both parties wish to resolve an
allegation informally, but because of the nature of the allegations or
information involved, or other factors, such as the risk of future harm
to others, or repeated allegations against the same respondent, the
recipient believes it is more appropriate to pursue resolution through
grievance procedures. This fact-specific inquiry depends, in part, on
the allegations, the identity of the parties, and a recipient's ability
to exert control over them.
In response to the commenter who suggested that it would be
inappropriate for a recipient to offer an informal resolution process
to resolve a complaint involving conduct at an off-campus recipient-
sponsored event or involving a third party, such as a contractor or
vendor, the Department disagrees, and reiterates that in such
circumstances, the recipient should conduct the same fact-specific
inquiry it does in other contexts to determine whether informal
resolution is appropriate.
The Department also maintains that a recipient must retain
discretion to decline informal resolution to fulfill its obligation to
address sex discrimination in its education program or activity,
similar to its discretion to initiate grievance procedures absent a
complaint.
Finally, the Department declines to require a recipient to provide
its reasons for declining to offer informal resolution in writing
because doing so would be overly burdensome and is not required to
fulfill Title IX's nondiscrimination mandate.
Changes: The Department has revised Sec. 106.44(k)(1) to state
that a recipient may offer to a complainant and respondent an informal
resolution process, unless the complaint includes allegations that an
employee engaged in sex-based harassment of an elementary school or
secondary school student. For clarity, at the beginning of Sec.
106.44(k)(1)(i), the Department has added the phrase ``[s]ubject to the
limitations in paragraph (k)(1),'' and at the beginning of Sec.
106.44(k)(1)(ii), the Department has added the phrase ``[i]n addition
to the limitations in paragraph (k)(1).'' In addition, consistent with
changes elsewhere in the final regulations, Sec. 106.44(k)(1)(i)
clarifies that a recipient has discretion to determine whether it is
appropriate to offer an informal resolution process when it receives
information about conduct that ``reasonably'' may constitute sex
discrimination under Title IX ``or this part.''
Section 106.44(k)(2) Voluntary Consent
Comments: Some commenters supported proposed Sec. 106.44(k)(2) on
the ground that it would require a recipient to avoid bias, remain
impartial, and ensure that protections and opportunities are available
to students during an informal resolution process.
Other commenters expressed concern that proposed Sec. 106.44(k)(2)
would not sufficiently prevent a recipient or party from coercing
someone into informal resolution, including when a recipient wants to
avoid creating a formal record of sex discrimination.
Some commenters argued that an elementary school or secondary
school student would be more likely to feel that they have no choice
other than to consent to participate if an adult administrator
encouraged informal resolution or would be vulnerable to accepting
whatever resolution an adult facilitator offered even if it was not
adequate or responsive to their needs.
Some commenters urged the Department to modify proposed Sec.
106.44(k)(2) to make clear coercion is prohibited, and to consider
replacing ``pressure'' with ``coerce'' because ``coerce'' is a clearer
and more objective term. Another commenter suggested the Department
state explicitly that declining to engage in informal resolution would
not affect a recipient's grievance procedures or outcomes therefrom.
One commenter recommended that the Department clearly prohibit a
recipient from applying negative or positive pressure to influence
either party's decision to proceed with the informal resolution
process.
Some commenters urged the Department to clarify the meaning of
``voluntary consent'' in proposed Sec. 106.44(k)(2). Some commenters
urged the Department to specify that ``voluntary consent'' must be
``informed'' and in writing to better document the agreement and reduce
confusion.
Some commenters asked the Department to require a recipient to
offer informal resolution to the respondent only after the complainant
has agreed to informal resolution. The commenters stated that this
modification would prevent a complainant from feeling coerced, and one
commenter argued that this would be consistent with the definition of
``restorative practice'' in the Violence Against Women Act.\42\
---------------------------------------------------------------------------
\42\ The commenter cited 34 U.S.C. 12291(a)(31)(B).
---------------------------------------------------------------------------
Discussion: The Department disagrees with commenters' concern that
Sec. 106.44(k)(2) will not sufficiently prevent a recipient or party
from coercing a party into informal resolution. Final Sec.
106.44(k)(2) explicitly states that a recipient must not require or
pressure a party to participate in informal resolution, and informal
resolution cannot be pursued unless both parties voluntarily consent.
In addition, Title IX Coordinators and facilitators must be free from
conflict of interest or bias, which will prohibit a recipient from
using informal resolution to protect a particular party or the
recipient's own financial, reputational, or other interests.
The Department recognizes that as minors, elementary school and
secondary school students are in a special position relative to
administrators and other adults, and in certain circumstances, may feel
pressured to consent to informal
[[Page 33629]]
resolution if offered. For this reason, as well as (1) a recipient's
obligation to comply with laws related to sexual abuse of minors, and
(2) the heightened risk of physical harm and severe emotional trauma
presented by an allegation that an adult engaged in sex-based
harassment of a minor, final Sec. 106.44(k)(1) prohibits informal
resolution of a complaint that includes allegations that an employee
engaged in sex-based harassment of an elementary school or secondary
school student. In addition, under final Sec. 106.6(g), nothing in
Title IX or the regulations 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 Sec. 106.6(e), including with respect to a student's participation
in informal resolution--which also guards against potential coercion of
minor students to participate in informal resolution.
The Department agrees with commenters that, in order to provide
voluntary consent, a party must have notice and information about the
informal resolution process, which the final regulations require in
Sec. 106.44(k)(3), as discussed below. With these guardrails, we
believe Sec. 106.44(k) will give parties an efficient, fair, and
accessible avenue to resolve allegations of sex discrimination while
continuing to offer a recipient flexibility to make choices appropriate
in light of the particular facts and circumstances.
Accordingly, the Department declines to incorporate the commenters'
suggested modifications because they are either already captured in the
final regulations, and thus are unnecessary and redundant, or would be
contrary to the purpose of informal resolution under Sec. 106.44(k),
which is to provide a recipient an informal avenue to address
allegations of sex discrimination through a process that is most
appropriate for the parties. For example, we believe that Sec.
106.44(k)(2) already makes sufficiently clear that a recipient may not
coerce parties, whether through positive or negative pressure, into
participating in an informal resolution process, and do not believe the
term ``pressure'' is any less objective, clear, or precise than
``coerce.'' We also believe it unnecessary to specify how a recipient
obtains the voluntary consent required by Sec. 106.44(k)(2). We
instead believe it appropriate to entrust such decisions to a
recipient's discretion and judgment. The Department notes that nothing
in Sec. 106.44(k) prohibits a recipient from obtaining a party's
voluntary consent in writing or obviates a recipient's recordkeeping
requirements under Sec. 106.8(f). The Department declines the
suggestion to require a recipient to offer informal resolution to the
respondent only after the complainant has agreed. Although this
approach may be appropriate in some cases, it may not be important in
all cases and the recipient is in the best position to make that
determination. However, nothing in the regulations prevents a recipient
from offering informal resolution to the complainant first.
The Department disagrees that a recipient will improperly pressure
individuals to use an informal resolution process out of a desire to
avoid a formal record of sex discrimination. Section 106.8(f)(1)
requires a recipient to ``document[ ]'' and retain records of ``the
informal resolution process under Sec. 106.44(k)'' as well as
grievance procedures under Sec. 106.45, and if applicable Sec.
106.46, for each complaint of sex discrimination. A recipient thus
cannot avoid creating records of sex discrimination by encouraging the
use of informal resolution instead of grievance procedures.
The Department also declines to incorporate other specific
suggestions, such as dictating other conditions for when a recipient
may offer informal resolution, in order to avoid overly formalizing the
informal resolution process. As explained above, we continue to believe
that the recipient is in the best position to decide when informal
resolution is appropriate, and how to structure those processes to suit
the parties' and its own needs within the guardrails set forth in the
regulations. We note again, though, that a recipient retains the
discretion to initiate or resume grievance procedures, consistent with
the final regulations.
Finally, upon its own review, for clarity and to maintain
consistency with other parts of the regulations, the Department changed
``adjudication'' in Sec. 106.44(k)(2) to ``determination.''
Changes: In final Sec. 106.44(k)(2) the Department has changed
``adjudication'' to ``determination.''
Section 106.44(k)(3) Notice Prior to Informal Resolution
Comments: Some commenters generally supported the notice provisions
in proposed Sec. 106.44(k)(3). However, one commenter stated that
requiring notice consistent with Sec. 106.44(k)(3) before the
initiation of informal resolution would formalize a process that is
meant to be informal. The commenter also interpreted Sec. 106.44(k)(3)
as requiring a recipient to disclose the names of the parties, which
could be in tension with the requirement in proposed Sec. 106.44(j)
prohibiting the disclosure of certain information.
Some commenters asked the Department to consider additional terms
that should be included in the notice.
Some commenters urged the Department to require a recipient to
provide clear written materials that describe the informal resolution
process and potential outcomes, explain the difference between informal
resolutions and grievance procedures, inform complainants about the
availability of a recipient's grievance procedures if they are
dissatisfied with the informal resolution process, provide clear
timeframes for informal resolution, and clarify that informal
resolution is optional.
One commenter asked the Department to revise proposed Sec.
106.44(k)(3)(iii) to state that, prior to agreeing to a resolution at
the conclusion of the informal resolution process, any party has the
right to withdraw from the informal resolution process and to initiate
or resume the recipient's grievance procedures.
In connection with proposed Sec. 106.44(k)(3)(iv), one commenter
recommended that the Department add ``unless the alleged behavior
continues'' to the end of the provision, because if behavior continues
after informal resolution, the decisionmaker in grievance procedures
should be able to consider the totality of the allegations, not just
those behaviors that occurred after the informal resolution agreement.
Some commenters specifically opposed proposed Sec. 106.44(k)(3)(v)
and urged its removal on the grounds that a generic list of possible
terms that could be included in an informal resolution agreement would
be overly prescriptive, impractical, unhelpful, and fail to recognize
the purpose and process of informal resolution. Commenters expressed
concern that if a party saw a general list that included inappropriate
terms for the situation at hand, it could dissuade the party from
pursuing informal resolution.
Alternatively, one commenter suggested that the Department revise
proposed Sec. 106.44(k)(3)(v) to refer to ``some of the potential
terms that may be requested or offered in an informal resolution
agreement'' to avoid limiting the terms of an agreement. One commenter
noted that sometimes a complainant may request that people who are not
parties to an informal resolution process, such as other members of a
respondent's student organization (e.g., a fraternity), attend a
training or take some other action. The
[[Page 33630]]
commenter urged the Department to clarify that parties cannot agree to
terms on behalf of people who are not part of the informal resolution
process.
One commenter also asked the Department to clarify which records
and in what circumstances information related to a complaint or
informal resolution could be disclosed under the proposed regulations.
Some commenters recommended that the Department remove proposed
Sec. 106.44(k)(3)(vii), regarding limiting access to information
obtained solely through informal resolution, some asked for
clarification regarding its application, and others supported it.
Commenters asserted that this provision may allow a party to use
informal resolution to strategically disclose information that they can
then suppress from being used as evidence during a recipient's
grievance procedures if informal resolution is unsuccessful. One
commenter stated that a rule conferring absolute confidentiality during
informal resolution is rarely effective in practice and stated that
either party should be able to ask for confidentiality as a term of the
informal resolution agreement, but that it should not be a default
term. Other commenters argued that proposed Sec. 106.44(k)(3)(vii) is
in tension with statements in the July 2022 NPRM regarding information
obtained through informal resolution being shared with law enforcement.
Some commenters asserted that a lack of privacy protections would
make informal resolution challenging even if the parties are willing to
pursue it. The commenters urged the Department to allow the parties to
agree that communications and information shared in the informal
resolution process will remain confidential regardless of whether the
parties reach an informal resolution or pursue a formal administrative
or criminal complaint.
Some commenters expressed concern or confusion with proposed Sec.
106.44(k)(3)(viii), which would permit an informal resolution
facilitator to serve as a witness if the grievance procedures were
resumed. Several commenters stated that proposed Sec.
106.44(k)(3)(viii) would exceed the Department's authority. Commenters
argued that proposed Sec. 106.44(k)(3)(viii) could directly conflict
with proposed Sec. 106.44(k)(3)(vii), would be unworkable, could
create conflicts of interest, and would chill the use of informal
resolution. Another commenter recommended that the Department add the
word ``only'' between ``witness'' and ``for purposes'' in proposed
Sec. 106.44(k)(3)(viii) to further limit when an informal resolution
facilitator can be a potential witness in a recipient's grievance
procedures.
One commenter recommended that the Department add a provision in
proposed Sec. 106.44(k)(3) that neither party can appeal an agreement
that is reached through informal resolution.
Another commenter recommended that the Department modify proposed
Sec. 106.44(k)(3) to allow the informal resolution facilitator to stop
the process and present the option of initiating or resuming the
recipient's grievance procedures before the parties agree to, or the
Title IX Coordinator approves, an informal resolution.
One commenter urged the Department to issue supplemental guidance
that instructs a recipient on how to create agreements with the parties
and local prosecutors that prohibit the use of information, including
records, obtained solely through an informal resolution process in a
civil or criminal legal proceeding.
Discussion: The Department acknowledges the range of comments in
response to proposed Sec. 106.44(k)(3). The Department is persuaded
that several changes are necessary to address concerns raised in
response to this proposed provision in the July 2022 NPRM. First, the
Department has modified paragraph (v) to state that the recipient must
provide notice of the potential terms that may be requested or offered
in an informal resolution agreement, including notice that an informal
resolution agreement is binding only on the parties. Second, the
Department has modified paragraph (vi) to state that the recipient must
provide notice of what information the recipient will maintain and
whether and how the recipient could disclose such information for use
in grievance procedures under Sec. 106.45, and if applicable Sec.
106.46, if grievance procedures are initiated or resumed. Finally, the
Department has deleted proposed paragraph (vii), regarding disclosure,
and proposed paragraph (viii), regarding facilitators as witnesses.
The Department declines to make changes to Sec. 106.44(k)(3)(iii)
because the provision is already clear that any party has the right to
withdraw from the informal resolution process and to initiate or resume
the recipient's grievance procedures prior to an agreed-upon resolution
at the conclusion of the informal resolution process.
Likewise, the Department declines to modify Sec. 106.44(k)(3)(iv)
because the provision is clear 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. If sex discrimination were to
continue after the conclusion of the informal resolution process, it
would not be covered under the agreement, and the complainant could
initiate the grievance procedures to address such conduct.
The Department disagrees that providing notice of the potential
terms as described in Sec. 106.44(k)(3)(v) is unhelpful or
impractical, because providing the parties with examples of the
potential outcomes and limitations of informal resolution is
particularly helpful for individuals who may be unfamiliar with
informal resolution generally or specific informal resolution processes
offered by the recipient. Additionally, the Department has modified
Sec. 106.44(k)(3)(v) to clarify that a recipient must advise the
parties that an informal resolution agreement is binding only on the
parties, which will prevent a facilitator from offering, and a party
from agreeing to, a term in informal resolution that cannot be enforced
because it depends on a non-party's action (such as requiring in an
informal resolution that a non-party undergo training). Paragraph (v)
does not limit the parties' opportunity for resolution, because the
notice need not cover every possible measure, remedy, or sanction to
which the parties may agree. Rather, the terms covered by paragraph (v)
would provide the general framework and parameters of the resolution
agreement so that the parties can provide informed consent.
The Department is persuaded that additional clarification is
required related to the information obtained through informal
resolution that may be maintained or disclosed. Accordingly, the
Department has revised Sec. 106.44(k)(3)(vi) to clarify that a
recipient must explain to the parties what information related to
informal resolution it may maintain or disclose if grievance procedures
are initiated or resumed. We believe that the revised Sec.
106.44(k)(3)(vi) strikes the right balance between ensuring that
parties are aware of the possible consequences related to pursuing
informal resolution and providing a recipient the flexibility needed to
structure an informal resolution process that suits its education
program or activity.
The Department is also persuaded by concerns commenters raised
about potential implementation difficulties and conflicts with other
provisions of the proposed regulations. As a result, the Department
strikes proposed paragraphs (vii)-(viii). The Department also now
maintains that these
[[Page 33631]]
provisions are inapposite given the changes the Department has made to
Sec. 106.44(k)(3)(vi), which now requires a recipient to tell parties
what information related to informal resolution it may or may not
disclose if grievance procedures proceed.
The Department also acknowledges the concern that the requirements
of Sec. 106.44(k)(3) formalize a process that was intended to be
informal. We nevertheless continue to believe these additional notice
requirements provide important information to the parties so that they
have a complete understanding of all aspects of the informal resolution
process and can therefore choose to participate in that process on an
appropriately informed basis. We stress, however, that a recipient must
comply with Sec. 106.44(j) when conducting an informal resolution
process and must therefore not disclose personally identifiable
information about the participants in an informal resolution process
except in the circumstances enumerated in that provision.
Additionally, we note that Sec. 106.44(k)(3) will require many of
the specific points that commenters believed a recipient should provide
to parties, including a description of what the informal resolution
process requires, potential terms of any informal resolution agreement,
and the right of the parties to withdraw from that process and pursue
the recipient's grievance procedures instead. We believe that these
notice requirements will adequately inform the parties of the contours
of the informal resolution process and provide them the information
they need to decide whether to choose or continue with informal
resolution.
Changes: The Department has modified Sec. 106.44(k)(3)(v) to state
that the recipient must provide notice of the potential terms that may
be requested or offered in an informal resolution agreement, including
notice that an informal resolution agreement is binding only on the
parties, and has modified paragraph (vi) to state that the recipient
must provide notice of what information the recipient will maintain and
whether and how the recipient could disclose such information for use
in grievance procedures under Sec. 106.45, and if applicable Sec.
106.46, if grievance procedures are initiated or resumed. The
Department has deleted proposed paragraphs (vii) and (viii) in the
final regulations.
Section 106.44(k)(4) Informal Resolution Facilitators
Comments: One commenter appreciated that proposed Sec.
106.44(k)(4) would require any informal resolution facilitator to be
properly trained, consistent with research on best practices in the
implementation of restorative justice. Other commenters urged the
Department to require a recipient to provide formal training to any
person who would be involved in carrying out informal resolution
processes.
Another commenter expressed concern that proposed Sec.
106.44(k)(4) would prohibit the informal resolution facilitator from
also serving as the investigator, which would require additional staff
to implement informal resolution. The commenter stated that many
recipients currently offer voluntary, informal resolution processes
facilitated by the investigator as an alternative to a hearing. The
commenter stated that, in these situations, there is a minimal risk of
investigator bias because the investigator has made no determination
regarding responsibility. Another commenter said that any informal
resolution facilitator should be impartial and have no conflict of
interest. Another commenter urged the Department to modify proposed
Sec. 106.44(k)(4) to allow Title IX investigators to facilitate
informal resolution because they are often best positioned to recommend
appropriate supportive measures, recourse, or follow-up actions and
that requiring a separate facilitator would be inefficient and impede
expedited resolution of complaints. The commenter argued that concerns
about bias or conflict of interest should be allayed because
investigators are trained to be neutral and are likely to also play a
role in other aspects of Title IX compliance.
One commenter asked the Department to provide more concrete
guidance for how a recipient that uses a single investigator model can
avoid bias and a conflict of interest under proposed Sec.
106.44(k)(4). Some commenters suggested that the Department specify
that the use of an outside entity to conduct investigations or
facilitate informal resolutions may alleviate such concerns.
Discussion: The Department acknowledges the comments in support of
proposed Sec. 106.44(k)(4) and recognizes the concerns raised about
the requirements this provision will impose on facilitators for
informal resolutions. However, the Department declines to modify this
provision because it is necessary to guard against the appearance of
bias or a conflict of interest, which could erode trust in a
recipient's grievance procedures and decrease the ability to ensure
fair and reliable outcomes in the event a party terminates informal
resolution and grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, are initiated or resumed.
We also decline to incorporate suggested modifications in final
Sec. 106.44(k)(4) because they are either already captured in the
final regulations, and thus are unnecessary and redundant, or would be
contrary to other guardrails that protect the integrity of informal
resolutions under Sec. 106.44(k). For example, Sec. 106.44(k)(4)
specifically provides that any person facilitating informal resolution
must receive training under Sec. 106.8(d)(3), and that person must not
have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent.
Changes: None.
Section 106.44(k)(5) Informal Resolution Agreements
Comments: One commenter supported proposed Sec. 106.44(k)(5)(ii)
because it would clarify that the parties may agree to informal
resolution terms that the recipient could have imposed at the
conclusion of a recipient's grievance procedures.
In contrast, one commenter recommended that the Department move
proposed Sec. 106.44(k)(5) to the preamble of the final regulations
because it is an incomplete list of examples that can be read as
exhaustive rather than illustrative. Another commenter stated that the
use of an incomplete list of potential informal resolution agreement
terms in proposed Sec. 106.44(k)(5) fails to recognize that informal
resolution varies greatly from case-to-case.
Several commenters urged the Department to clarify what information
regarding the informal resolution agreement will be shared with parents
if a written report does not need to be provided but may be retained in
the recipient's records.
One commenter expressed concern that the inclusion of restrictions
on contact in proposed Sec. 106.44(k)(5)(i) could amount to a mutual
no-contact order that restricts a complainant and respondent alike. The
commenter stated that the mention of a term that only applies to the
respondent in Sec. 106.44(k)(5)(ii) supports the interpretation that
Sec. 106.44(k)(5)(i) could create a term similar to a mutual no-
contact order. In contrast, the
[[Page 33632]]
commenter stated that under a recipient's grievance procedures, a
recipient may only impose such a consequence on a respondent after a
determination that sex discrimination occurred. The commenter stated
that although a complainant must agree to any term in the informal
resolution agreement, without legal advice a complainant may not
understand the risk involved in agreeing to a no-contact order. Other
commenters expressed concern that students could not rely on external
actors, such as a lawyer or survivor advocate, for advice about their
rights in an informal resolution process, because these actors often
lack the expertise needed to navigate a recipient's internal Title IX
system.
Discussion: The Department acknowledges the comments in support of
Sec. 106.44(k)(5) and disagrees with commenters' suggestion that the
list of examples offered in Sec. 106.44(k)(5)(i) and (ii) could fairly
be read as anything but illustrative because it states that potential
terms may ``include but are not limited to'' those specifically
described in those provisions.
The Department declines to incorporate modifications suggested by
some commenters, such as describing what a recipient may offer in
informal resolution, because they are either already captured in the
final regulations, and thus are unnecessary and redundant, or would be
contrary to the purpose of informal resolutions under Sec. 106.44(k),
which is to provide a recipient and the parties more options in
resolving complaints of sex discrimination.
With respect to a parent's role in informal resolution, the
Department appreciates the opportunity to clarify that nothing in Title
IX or these regulations 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 Sec.
106.6(e), in proceedings such as an informal resolution process under
Sec. 106.44(k), including the right access to any document or other
information to which they otherwise would be legally entitled in that
role. See Sec. 106.6(g).
The Department appreciates the opportunity to clarify that
restrictions on contact under Sec. 106.44(k)(5)(i) may be non-mutual
or mutual. As explained in the July 2022 NPRM, although the 2020
amendments only included references to mutual no-contact orders, these
final regulations eliminate the term ``mutual'' to ensure that a
recipient understands that it is not limited to imposing mutual
restrictions on contact between the parties. See 87 FR 41450 (as
applied to the non-exhaustive list of supportive measures a recipient
may offer under Sec. 106.44(g)(1)). The Department also appreciates
the opportunity to clarify that a recipient may impose restrictions on
contact prior to the completion of grievance procedures either as a
supportive measure during the pendency of grievance procedures and
prior to a determination whether sex discrimination occurred, see Types
of Supportive Measures (Sec. 106.44(g)(1)); or as a term of an
informal resolution agreement, which the final regulations specify may
include restrictions the recipient could have imposed as remedies or
disciplinary sanctions had the recipient determined at the conclusion
of grievance procedures that sex discrimination occurred, see Sec.
106.44(k)(5)(ii). Although the Department acknowledges concerns that
unfamiliarity with a recipient's internal processes may limit an
external actor's ability to advise a party of their rights in an
informal resolution process, the requirements in Sec. 106.44(k)(3) are
designed to ensure the parties receive important information to help
them understand the process and make an informed decision whether to
participate in informal resolution. The Department emphasizes that
nothing in these final regulations prevents a party from seeking
further clarification of any aspect of a recipient's informal
resolution process and consistent with Sec. 106.44(k)(2) and (3)(iii),
a party has the right to decline an offer to participate in, or
withdraw from, a recipient's informal resolution process prior to
agreeing to a resolution.
Finally, upon its own review, the Department determined that final
Sec. 106.44(k)(5)(ii) should make clear that restrictions on the
respondent's participation in the recipient's programs or activities
include those that the recipient could have imposed as remedies or
disciplinary sanctions had the recipient ``determined at the conclusion
of the recipient's grievance procedures that sex discrimination
occurred.''
Changes: For clarity and consistency with the rest of the
regulations, in final Sec. 106.44(k)(5)(ii) the Department has changed
``had the recipient determined that sex discrimination occurred under
the recipient's grievance procedures'' to ``had the recipient
determined at the conclusion of the recipient's grievance procedures
that sex discrimination occurred.''
Requests for Guidance on Informal Resolution Processes
Comments: Some commenters appreciated that Sec. 106.44(k) would
allow a recipient to offer informal resolution processes, such as
mediation, restorative justice, and transformative justice, which one
commenter asserted could suitably address intersectional
discrimination, provide community education, and allow for non-punitive
or less severe outcomes.
However, several commenters requested that the Department clarify
the role of restorative justice processes in informal resolution and
which informal resolution processes are inappropriate based on the
nature of alleged harassment. Some commenters reported that the
Department previously stated in its 2001 Revised Sexual Harassment
Guidance that mediation would not be appropriate to resolve an
allegation of sexual assault. Several commenters also requested that
the Department clarify the role of mediation in informal resolutions.
Some commenters stated that mediation or conflict resolution is an
inappropriate method for resolving a sex-based harassment complaint
because it assumes each party shares responsibility or blame for the
harassment, could allow a respondent to pressure a complainant into an
inappropriate resolution, and often requires direct and possibly
retraumatizing interaction between the parties. One commenter noted
that this was especially true for Black girls, who are commonly blamed
for the sex-based harassment they experience. One commenter identified
these same concerns and urged the Department to prohibit mediation from
being used to address an allegation of sexual assault, when, according
to the commenter, such concerns would be magnified. Commenters
contrasted those methods with restorative processes, which require the
harasser to admit that they harmed the complainant, focus on the
complainant's needs, repair the harm caused, and change future
behavior.
Commenters also asked the Department to issue supplemental guidance
that describes various types of informal resolution processes that
would be appropriate or inappropriate under Title IX, including more
information about restorative practices and related sources of funding.
One commenter asserted that guidance on effective informal resolution
processes, such as restorative justice and transformative justice,
would lessen the burden on a recipient that is likely to focus its
resources and training on
[[Page 33633]]
compliance with the recipient's grievance procedures outlined in
proposed Sec. Sec. 106.45 and 106.46.
Some commenters encouraged the Department to issue guidance that
would detail best practices for informal resolution. One commenter
urged the Department to collaborate with recipients and community-based
organizations that currently conduct restorative justice programs for
sexual violence cases to create recommendations that would be included
in best practices guidance.
Another commenter raised concerns about a recipient's ability to
implement specific informal resolution processes. The commenter stated
that the proposed regulations would be untenable for any recipient that
has adopted restorative justice practices that seek to achieve mutual
understanding between the complainant and respondent and avoid
punishment for first-time offenders. Some commenters suggested that the
Department modify the regulations to expand restorative and
transformative justice practices and provide funding for these
practices.
Several commenters, which included State and local survivor
advocacy organizations, expressed support for the proposed regulations
and urged the Department to explicitly allow and encourage restorative
justice practices as an option for informal resolution. The commenters
asserted that restorative justice practices are more trauma-informed
and survivor-centered than mediation.
Discussion: The Department acknowledges the many comments it
received requesting clarification of various informal resolution
processes that a recipient may elect to use under Sec. 106.44(k). As
noted above, informal resolution may encompass a wide variety of
alternative dispute resolution processes, and these final regulations
provide a recipient discretion to choose a resolution option that is
best for them, the parties, and their educational communities. As
discussed in the July 2022 NPRM, 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. 87 FR 41454. In the postsecondary
setting, an informal resolution process could involve mediation or a
more complex restorative justice process. Id. The Department
acknowledges the commenters' concerns regarding mediation (including
the Department's previous statements dissuading a recipient from using
mediation to resolve an allegation of sexual assault), as well as the
evidence of the potential benefits of restorative justice practices. In
the last two decades, based on its enforcement experience, the
Department has come to believe it should offer a recipient more
flexibility in designing alternative procedures, and nothing prohibits
a recipient from declining to offer mediation if it concludes such a
process would be inappropriate. The final regulations do not preclude
the use of restorative or transformative justice practices, nor did
commenters identify any specific conflict between Sec. 106.44(k) and
restorative or transformative justice models. Accordingly, a recipient
could include such practices in its informal resolution processes. The
Department acknowledges the request for further information regarding
informal resolution, and the Department will offer technical
assistance, as appropriate, to promote compliance with these final
regulations.
Changes: None.
C. Framework for Grievance Procedures for Complaints of Sex
Discrimination
Section 106.45 of these final regulations specifies grievance
procedures for the prompt and equitable resolution of complaints of sex
discrimination generally, while Sec. 106.46 specifies further
grievance procedures for the prompt and equitable resolution of
complaints of sex-based harassment involving a student party in a
postsecondary institution. The Department is authorized by statute to
promulgate regulations to effectuate the purpose of Title IX, see 20
U.S.C. 1682, including by requiring grievance procedures that provide
for the prompt and equitable resolution of sex discrimination
complaints. See Gebser, 524 U.S. at 292 (noting that the Department can
administratively enforce the requirement that a school ``promulgate a
grievance procedure'').
The Department received a range of comments on these provisions.
Some commenters supported the requirements for grievance procedures in
Sec. Sec. 106.45 and 106.46 as proposed. Other commenters preferred
the grievance procedures established by the 2020 amendments, in whole
or in part. Still other commenters recommended streamlining Sec.
106.45 and eliminating Sec. 106.46; or eliminating Sec. 106.45 and
extending Sec. 106.46 to all sex discrimination complaints. In
addition, other commenters requested that the Department modify the
procedures depending on the type of recipient, the conduct alleged, or
the identity of the parties. The discussion below explains more
specific bases for commenters' views, incorporates responses received
to the directed question in the July 2022 NPRM about a recipient's
obligation to provide an educational environment free from sex
discrimination (proposed Sec. Sec. 106.44, 106.45, and 106.46), 87 FR
41544, and presents the Department's reasoning and conclusions. Unless
otherwise noted, the term ``grievance procedures'' refers to grievance
procedures set forth in Sec. 106.45, and if applicable Sec. 106.46,
that provide for the prompt and equitable resolution of complaints made
by students, employees, or other individuals who are participating or
attempting to 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 or this part. See Sec. 106.8(b)(2).
1. General Support
Comments: Many commenters supported the proposed grievance
procedures framework for a range of reasons. For example, some
commenters appreciated that the procedures would ensure that a
recipient takes sexual harassment seriously, outline how a recipient
must address any allegation of sex discrimination beyond just sex-based
harassment, remove the need for additional or separate grievance
procedures for any subset of sex discrimination complaints, and return
to a decades-old standard that required a recipient to respond
appropriately and provide support to complainants. One commenter stated
that the procedures would increase transparency, equity, and trauma-
informed care for complainants, address systemic forms of
discrimination, and resolve grievances in a prompt, fair, and equitable
manner.
Other commenters appreciated that the proposed grievance procedures
reflect public input from a range of stakeholders, and provide
flexibility, clarity, and streamlined procedures for recipients. On
flexibility, one commenter specifically identified the removal of
requirements related to written reports, cross-examination, and
informal resolution, as well as the inclusion of provisions permitting
a recipient to adopt the single-investigator model. Another commenter
stated that the structural and operational differences between
recipients--such as population size and demographics, staffing,
financial resources, and student needs and experiences--make inflexible
rules particularly inappropriate.
Other commenters addressed regulatory stability and appreciated
that the proposed grievance procedures retained some of the 2020
amendments. Some commenters stated that flexibility in the proposed
regulations and
[[Page 33634]]
retention of some of the 2020 amendments would deter future proposed
rulemaking in favor of stability and resilience.
Discussion: The Department acknowledges these comments and agrees
that these regulations will provide a recipient greater flexibility and
clarity in designing Title IX grievance procedures that are consistent
with both due process principles and procedures to address other
violations of its student code of conduct, including discrimination
based on other protected traits. Final Sec. 106.45 establishes the
basic elements of a fair process, sets clear guideposts for prompt and
equitable resolution of complaints of sex discrimination, including
sex-based harassment, and ensures transparent and reliable outcomes for
recipients, students, employees, and others participating or attempting
to participate in a recipient's education program or activity.
Additionally, the requirements in final Sec. 106.46--which are
incorporated from Sec. 106.45 of the 2020 amendments with
modifications, as explained in greater detail in the discussion of
individual sections in Sec. 106.46, and which apply only to complaints
of sex-based harassment involving a student party at a postsecondary
institution--afford additional procedural requirements that are
appropriate to the age, maturity, independence, needs, and context of
students at postsecondary institutions.
The Department appreciates the opportunity to clarify that all
recipients must implement grievance procedures consistent with Sec.
106.45 or offer informal resolution consistent with Sec. 106.44(k), as
available and appropriate, to resolve a complaint of sex
discrimination. At the same time, only postsecondary institutions have
an additional obligation to implement grievance procedures consistent
with Sec. 106.46 (or offer informal resolution consistent with Sec.
106.44(k), as available and appropriate), and this obligation is
limited to resolving an allegation of sex-based harassment in which
either the complainant or respondent is a student. Final Sec. 106.45
sets forth baseline requirements to resolve any allegation of sex
discrimination, including sex-based harassment, that may occur at a
wide range of recipients, including an elementary school, secondary
school, and other recipients such as State educational agencies, State
vocational rehabilitation agencies, public libraries, museums, and
other entities that receive Federal financial assistance from the
Department. See 87 FR 41460.
The Department shares commenters' concerns about the importance of
regulatory stability and the need for a recipient and all members of
its educational community to have clear information about rights and
responsibilities under Title IX, including the framework for addressing
any alleged sex discrimination. By retaining and enhancing many of the
requirements in the 2020 amendments, these final regulations provide
the regulatory stability that promotes broad understanding of Title
IX's nondiscrimination mandate and the rights and responsibilities it
confers in educational settings that receive Federal financial
assistance from the Department. At the same time, the Department
recognizes the need to modify some of the changes made by the 2020
amendments (including by codifying longstanding interpretations of the
statute) in order to fully effectuate Title IX's nondiscrimination
mandate.
Other commenters objected to various aspects of Sec. Sec. 106.45
and 106.46. We summarize and respond to their comments in the sections
below.
Changes: None.
2. Due Process Generally
Comments: The Department received an array of comments about
Sec. Sec. 106.45 and 106.46 that related to due process. Some
commenters expressed general support for the due process considerations
reflected in the proposed regulations. For example, some commenters
stated that it is reasonable for the Department to update the
regulations to ensure effective implementation of Title IX while also
safeguarding parties' due process rights. Other commenters concluded
that the regulations would be fairer and less adversarial than the 2020
amendments, particularly at postsecondary institutions, and would also
afford a recipient flexibility to establish effective and fair
procedures tailored to a recipient's educational environment, including
applicable State laws. One commenter stated that the proposed
regulations would more appropriately balance flexibility,
accountability, and due process concerns compared to the current
regulations, while another commenter criticized the 2020 amendments for
being excessively prescriptive and administratively burdensome.
In contrast, other commenters expressed concern that the proposed
regulations would erode or deprive students of due process. For
example, some commenters asserted that the 2020 amendments were fair
and protected the rights of complainants and respondents alike, while
the proposed regulations would mistakenly assume a tension between due
process and Title IX's nondiscrimination mandate and would only require
a recipient to provide as few procedural requirements as possible. In
addition, one group of commenters asserted that the Department's
justification for retaining certain procedural requirements from the
2020 amendments in proposed Sec. 106.46 recognized the importance of
procedural requirements, and that such recognition was in tension with
the Department's proposal to omit many of those procedural requirements
from proposed Sec. 106.45 and revoke some provisions of the 2020
amendments.
Other commenters opposed the proposed regulations because, in their
view, the regulations would effectively adopt procedures set forth in
the Department's 2011 and 2014 guidance documents that, according to
these commenters, pressured recipients to adopt unfair procedures that
denied adequate notice, denied access to evidence, and failed to
sanction false statements.
Some commenters suggested that courts have held that a
postsecondary institution denied due process to a respondent while
following procedures that the commenters describe as similar to those
in the proposed regulations.
Discussion: The Department acknowledges commenters' support for the
grievance procedures framework and agrees that the final regulations
appropriately and fairly safeguard the due process rights of
complainants and respondents while affording a recipient flexibility to
address all types of sex discrimination complaints. The final
regulations hold a recipient accountable for effectuating Title IX's
nondiscrimination mandate while striking the right balance of all
relevant considerations, including the preservation of due process, the
ability of a recipient to tailor grievance procedures to suit its
educational environment, and additional legal considerations under
State or other laws.
The grievance procedures required in final Sec. 106.46 retain many
aspects of the 2020 amendments, including components that diverge from
the framing in the 2011 Dear Colleague Letter on Sexual Violence and
the 2014 Q&A on Sexual Violence. See, e.g., Sec. 106.46(e)(2)
(opportunity to have an advisor of the party's choice at any meeting or
proceeding); (f)(1)(ii)(B) (allowing a party's advisor to ask relevant
and not otherwise impermissible questions to other parties and
witnesses during a live hearing); and (i)(1) and (2) (providing an
opportunity to appeal based on
[[Page 33635]]
procedural irregularity, new evidence, or conflict of interest or bias,
as well as any other bases the recipient offers equally to the
parties). And they include provisions that ensure that complainants and
respondents have adequate notice and access to evidence and that
preserve a recipient's authority to prohibit parties and witnesses from
knowingly making false statements. See Sec. 106.46(c), (d), (e)(1),
and (e)(5) (written notice of allegations, dismissal of complaints,
meetings, interviews, hearings, and delays); (e)(6) (equal opportunity
to access to relevant and not otherwise impermissible evidence);
(c)(1)(iv) (requiring written notices to inform the parties of any
provision of a postsecondary institution's code of conduct that
prohibits knowingly making false statements). With respect to
complaints of sex discrimination other than those of sex-based
harassment involving a student at postsecondary institutions, the
Department notes that Sec. 106.45 builds on the 2020 amendments by
outlining grievance procedures that allow for the prompt and equitable
resolution of such complaints in a manner that comports with the
requirements of due process and is consistent with the standard set out
in Goss, 419 U.S. at 579 (requiring schools to provide students facing
up to a 10-day suspension with, at a minimum, ``some kind of notice''
and ``some kind of hearing''), as explained in the discussion of the
individual provisions below. See also 87 FR 41456. The Department
further disagrees with the commenters' assertion that the procedures
set forth in final Sec. Sec. 106.45 and 106.46 pressure a recipient to
adopt unfair procedures. Instead--and as explained in greater detail
below--these procedures appropriately account for a recipient's
obligations to comply both with Title IX's nondiscrimination mandate
and the requirements of due process.
The Department disagrees with assertions made by some commenters
that the justification for additional requirements under Sec. 106.46
is undermined because Sec. 106.45 omits these additional requirements
and the final regulations revoke some provisions of the 2020
amendments. As explained in the discussion of the individual provisions
of Sec. 106.46, these additional requirements in Sec. 106.46 address
unique considerations raised by sex-based harassment complaints
involving students in a postsecondary setting but, in other
circumstances, are unnecessary to preserve due process and may impair a
recipient's ability to resolve sex discrimination complaints in a
prompt and equitable manner. See discussion of Sec. 106.46; see also
87 FR 41457-61. The Department's view comports with Supreme Court
precedent that due process requirements vary with the particular
circumstances. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990);
Gilbert v. Homar, 520 U.S. 924, 930 (1997); Cafeteria & Rest. Workers
v. McElroy, 367 U.S. 886, 895 (1961).
The requirements for grievance procedures under Sec. 106.45, and
if applicable Sec. 106.46, afford clear and predictable safeguards and
will ensure fair, transparent, and reliable grievance procedures to
resolve all forms of sex discrimination. Thus, by incorporating
grievance procedures for the prompt and equitable resolution of sex
discrimination complaints broadly in Sec. 106.45, and retaining the
aforementioned key provisions for the resolution of complaints that
allege sex-based harassment involving a postsecondary student in Sec.
106.46, the Department's final grievance procedure requirements
strengthen the 2020 amendments' existing requirements to address sex-
based harassment, expand those requirements to cover all forms of sex
discrimination, and ensure all parties are afforded procedures that
comport with the requirements of due process.
The Department has reviewed the court decisions cited by commenters
and disagrees with the commenters' characterization that Sec. Sec.
106.45 and 106.46 conflict with their holdings. Some of the decisions
concluded that the procedures used by a particular recipient in
resolving complaints of sexual assault violated due process,\43\ while
others did not draw final conclusions about whether the particular
procedures a recipient provided were sufficient.\44\ The decisions
cited do not provide a basis for the view suggested by the commenters
that the final regulations adopted here are inconsistent with due
process requirements.
---------------------------------------------------------------------------
\43\ See, e.g., Doe v. Miami Univ., 882 F.3d 579 (6th Cir.
2018); Doe v. Baum, 903 F.3d 575 (6th Cir. 2018); Doe v. Univ. of
Cincinnati, 872 F.3d 393 (6th Cir. 2017).
\44\ See, e.g., Munoz v. Strong, No. 20-CV-984, 2021 WL 5548081
(W.D. Mich. June 23, 2021) (denying university's motion to dismiss
due process claim because the plaintiff has ``plausibly'' alleged
that his rights to notice and an opportunity to be heard had been
violated).
---------------------------------------------------------------------------
The Department notes that commenters voiced support and raised
questions about specific provisions in proposed Sec. Sec. 106.45 and
106.46. Those comments, and the Department's reasons for retaining or
revising those provisions, are summarized and addressed in more detail
in discussions of the relevant individual provisions below.
Changes: None.
Due Process Applied to Various Recipients and the Department
Comments: Whether supporting or opposing the proposed regulations,
many commenters recognized the importance of due process in a
recipient's response to conduct that allegedly violates Title IX. With
respect to a public recipient, several commenters noted that a public
postsecondary institution must apply constitutional due process
protections before disciplining, terminating, or expelling a student.
Other commenters addressed the application of due process principles to
public elementary schools and secondary schools. In addition, some
commenters noted the importance of applying due process principles to
sex discrimination complaints in the private college context, drawing
on theories of basic fairness under common law, statute, or contract
law.
Other commenters addressed the application of constitutional due
process requirements to OCR. Some commenters stated that, as a
government actor, OCR cannot compel a public or private recipient to
deprive a person of due process, nor compel a recipient to take actions
that if taken by OCR would violate the Fifth Amendment's Due Process
Clause.
Discussion: The Department acknowledges the thoughtful comments on
the specific role constitutional due process principles should play in
a recipient's grievance procedures to determine whether an individual
engaged in unlawful sex discrimination while participating in an
education program or activity.
As the Department acknowledged in the July 2022 NPRM, courts have
held that public postsecondary institutions' disciplinary proceedings
are subject to the requirements of procedural due process. 87 FR 41456.
And while the Due Process Clauses of the Fifth and Fourteenth
Amendments do not apply to a private recipient, the Department does not
intend to impose, nor does Title IX require, different procedural
standards for public and private recipients. 87 FR 41456. The
Department agrees with commenters that as an agency of the Federal
government subject to the U.S. Constitution, the Department is
precluded from administering, enforcing, and interpreting statutes,
including Title IX, in a manner that would require a recipient to deny
the
[[Page 33636]]
parties their constitutional rights to due process. The final
regulations make clear that nothing in the regulations requires a
recipient to restrict any rights guaranteed by the U.S. Constitution.
34 CFR 106.6(d).
Changes: None.
Method for Determining What Process Is Due
Comments: Commenters had differing opinions about the process a
recipient should be required to provide. For example, one commenter
stated that postsecondary institution proceedings are not judicial
proceedings and do not have to mimic the latter to be fair and
equitable. In contrast, other commenters asserted that the Department's
Title IX regulations should adopt the same procedures used in criminal
proceedings. Still others invoked the test in Mathews v. Eldridge, 424
U.S. 319 (1976), for determining what process is due, with one
commenter asserting the proposed regulations would fail the Mathews
test. One commenter asserted that minimum due process requires timely
notice of the charges and an opportunity for the respondent to review
the evidence and present their side of the story.
Discussion: The Department reiterates its strong agreement that
procedures to resolve disputes about sex discrimination, including sex-
based harassment, must comport with due process. However, as some
commenters noted, this agreement does not answer the question of what
specific process is due. ``[N]ot all situations calling for procedural
safeguards call for the same kind of procedure.'' Morrissey v. Brewer,
408 U.S. 471, 481 (1972); see also Hannah v. Larche, 363 U.S. 420, 442
(1960); Zinermon, 494 U.S. at 127; Gilbert, 520 U.S. at 930. That a
particular procedure is required in criminal or civil judicial
proceedings does not mean the same procedure is required in all
situations. See, e.g., Bd. of Curators of Univ. of Mo. v. Horowitz, 435
U.S. 78, 88 (1978); Baxter v. Palmigiano, 425 U.S. 308, 321 (1976); 87
FR 41456; 85 FR 30051, 30531.
As explained in greater detail in the discussions of the individual
grievance procedure provisions of the final regulations, the Department
concludes that the framework set forth in Sec. Sec. 106.45 and 106.46
allows a public recipient to meet the requirements of constitutional
due process, including that a person be afforded notice and an
opportunity to be heard before they may be deprived of ``life, liberty,
or property.'' Goss, 419 U.S. at 579. Although different grievance
procedures might also satisfy due process, the Department strongly
disagrees that the requirements in the final regulations fall short of
due process requirements. Moreover, the Department notes that adding
further procedures may discourage an individual from making a complaint
of sex discrimination or participating in grievance procedures, which
would undermine Title IX's nondiscrimination mandate.
In determining whether an agency's administrative procedures afford
constitutional due process, courts apply the factors described in
Mathews, 424 U.S. at 334-35, which are satisfied here as well.
Specifically, as several commenters noted and the Department
acknowledged in the preamble to the 2020 amendments, see 85 FR 30283
n.1130, the factors described in Mathews determine what procedural
protections due process requires in a particular situation. ``Under the
Mathews balancing test, a court evaluates (A) the private interest
affected; (B) the risk of erroneous deprivation of that interest
through the procedures used; and (C) the governmental interest at
stake.'' Nelson v. Colorado, 581 U.S. 128, 135 (2017); see also
Zinermon, 494 U.S. at 127 (courts ``weigh several factors'' in
determining what procedural protections the Due Process Clause requires
in a particular case). Consistent with this understanding, the final
grievance procedures set forth in Sec. Sec. 106.45 and 106.46 are
tailored to the unique settings and rights implicated by allegations of
sex discrimination (including sex-based harassment) at educational
institutions.
Changes: None.
Identifying Relevant Interests
Comments: Some commenters supported the framework for grievance
procedures because it would make campuses safer by encouraging the use
of grievance procedures. Other commenters opposed the framework because
they thought the procedural protections went too far, which would
discourage the filing of complaints, or subject complainants to
retaliation.
Some commenters expressed concern that the proposed framework for
grievance procedures lacked adequate definitions, due process, and
fundamental fairness for a student respondent. Commenters raised
concern about a recipient wrongfully punishing innocent students,
including for sexual assault, which would have significant consequences
for such respondents. One commenter asserted that even being named a
respondent in a sex discrimination complaint would likely damage a
person's reputation if known to others or if added to written records.
One group of commenters asserted that ``efficiency'' is not a valid
justification for departing from procedural requirements that would
ensure fairness.
Discussion: The Department recognizes that grievance procedures
will have significant impact not only on how a recipient investigates
sex discrimination allegations, but also on the various interests that
commenters identified. Among these is a recipient's interest in
ensuring that it operates its education program and activity in a
manner that is free from sex discrimination--including through
grievance procedures that do not discourage reports of sex
discrimination and that protect participants from retaliation. They
also include the interest that all parties share in the fairness and
reliability of such procedures. The Department describes in greater
detail how the requirements for grievance procedures in the final
regulations address these important interests in its discussion of the
specific provisions in Sec. Sec. 106.45 and 106.46 and explains the
final regulations' robust protections against retaliation in its
discussion of Sec. 106.71. For the reasons discussed in those specific
sections, the Department strongly disagrees that the requirements for
grievance procedures in the final regulations fail to afford due
process or ensure fundamental fairness to respondents.
The Department also disagrees that the requirements for grievance
procedures in the final regulations ignore concerns about wrongful
punishment or the harms respondents experience when they are named in
sex discrimination complaints. On the contrary, the final regulations
protect these interests, including by adopting specific provisions that
operate to ensure fair procedures that result in accurate and reliable
outcomes. See, e.g., Sec. 106.45(b)(1), (2), and (6) (requiring
equitable treatment of the parties, addressing questions of conflict of
interest and bias, setting standards for the objective evaluation of
relevant and not otherwise impermissible evidence, and ensuring
determinations are not reached before the conclusion of the grievance
procedures), (d)(3), (i) (providing bases for appeals of decisions
under Sec. 106.45); Sec. 106.46(a) (Sec. 106.46's grievance
procedures ``must include provisions that incorporate the requirements
of Sec. 106.45''), (i) (providing bases for appeals of decisions under
Sec. 106.46). The Department recognizes that being named as a
respondent can impose harm (including reputational harm), especially if
that
[[Page 33637]]
information is made known to others or added to written records.
Accordingly, the grievance procedures include provisions to regulate
the disclosure of certain types of information related to alleged sex
discrimination, as discussed in greater detail below. See, e.g., Sec.
106.45(b)(5), (7) (requiring a recipient to take reasonable steps to
protect parties' privacy and to exclude certain evidence and questions
as impermissible), (f)(4)(iii) (requiring a recipient to take
reasonable steps to prevent and address unauthorized disclosure of
information). In addition, these final regulations require a recipient
to ensure that respondents have access to supportive measures. See
Sec. Sec. 106.44(f)(1)(ii), (g), 106.45(l)(1).
Moreover, the Department notes a respondent's interest is not the
only individual interest that must be considered in the Mathews
analysis. The Supreme Court has explained that when more than one
private party's interests are implicated in a proceeding (i.e., both a
complainant and a respondent as private parties), both parties'
interests must be considered in determining what process is due. See
Brock v. Roadway Exp., Inc., 481 U.S. 252, 263 (1987). Similar to
respondents, complainants likewise have an important interest in
remaining enrolled in school and completing their education, an
interest that can be threatened if discrimination they face is allowed
to continue unremedied. The Department must take these interests into
account, and the final regulations reflect these concerns. And contrary
to the concerns voiced by some commenters, the final regulations do not
go too far in the direction of dissuading a complainant from making a
complaint or fail to protect such complainants from retaliation for
doing so. Rather, as explained in greater detail in the discussions of
Sec. Sec. 106.45(a)(2) and 106.71, the final regulations ensure that a
complainant can make a complaint if they experience sex discrimination
(including sex-based harassment) and are protected from retaliation,
while also ensuring that all parties receive the process they are due.
The Department also notes that under the final regulations a Title IX
Coordinator must take certain actions upon being notified of conduct
that reasonably may constitute sex discrimination, including offering
and coordinating supportive measures or, if available and appropriate,
offering to resolve a complaint using an informal resolution process.
See Sec. 106.44(f)(1)(ii), (f)(1)(iv), (g), (k). These measures will
help mitigate any deterrent effect the grievance procedures might have.
In addition to acknowledging the overlapping, but distinct, private
interests involved, the Mathews analysis asks what procedures will
decrease the likelihood that a decisionmaker reaches the wrong
conclusion. Because ``a primary function of legal process is to
minimize the risk of erroneous decisions,'' there must be a close
assessment ``of the relative reliability of the procedures used and the
substitute procedures sought.'' Mackey v. Montrym, 443 U.S. 1, 13
(1979). For the reasons explained in greater detail in the discussions
of specific provisions of Sec. Sec. 106.45 and 106.46, the Department
has concluded that the grievance procedures set forth in the final
regulations meet this standard. But the Department notes here that in
conducting this analysis, courts do not simply ask whether a particular
additional procedure would improve reliability. Instead, they also
inquire into how much the procedure would do so and at what cost. Even
if some ``marginal gains from affording an additional procedural
safeguard'' would occur, due process does not require that additional
procedure if it is ``outweighed by the societal cost of providing such
a safeguard.'' Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S.
305, 321 (1985). Contrary to commenters' statements, such ``societal
costs,'' id., can include considerations of ``administrative
efficiency,'' see Dixon v. Love, 431 U.S. 105, 114 (1977). But they
also include other considerations, including the concern--voiced by
some commenters--that adopting additional procedures could discourage
individuals who experience sex discrimination from making a complaint.
Changes: None.
Issues of Bias
Comments: Some commenters raised concerns about biased grievance
procedures.
Discussion: The Department shares commenters' concerns about the
potential for bias in grievance procedures and the disproportionate
impact biased procedures may have on respondents who come from a range
of backgrounds. The Department stresses that the final regulations'
grievance procedures must not be tainted by bias. To guard against
bias, the final regulations require that any person designated as a
Title IX Coordinator, investigator, or decisionmaker not have a
conflict of interest or bias against complainants or respondents
generally or an individual complainant or respondent. Sec.
106.45(b)(2); see also Sec. 106.46(a) (requiring postsecondary
institutions to incorporate Sec. 106.45's requirements into its
grievance procedures for resolving complaints of sex-based harassment
involving a student party). The final regulations impose the same
requirement for any person designated by a recipient to facilitate an
informal resolution process under Sec. 106.44(k). See Sec.
106.46(k)(4). They also explicitly provide that bias is a ground for
appeal from a dismissal or determination whether sex-based harassment
occurred. See Sec. Sec. 106.45(d)(3), 106.46(i)(1)(iii). The final
regulations also require a presumption that the respondent is not
responsible for the alleged sex discrimination until a determination is
made at the conclusion of the recipient's grievance procedures. See
Sec. 106.45(b)(3). And the final regulations include strong
protections that build on provisions in the 2020 amendments that seek
to prevent biased procedures through appropriate training. See Sec.
106.8(d)(2)(iii), (3); 85 FR 30112. The Department explains these anti-
bias provisions in greater detail in the discussion of Sec. Sec.
106.8(d), 106.44(k)(4), and 106.45(b)(2).
Changes: None.
3. Administrative Burdens
Comments: Some commenters expressed concern that the proposed
requirements for grievance procedures would place unmanageable
administrative burdens on a recipient. Other commenters suggested the
regulations would detract from efforts to identify, prevent, and remedy
sex discrimination. Some commenters asserted that having one set of
grievance procedures to address sex-based harassment and another for
other forms of sex discrimination would create confusion for a
recipient as to which requirements apply to which complaints. In
addition, some commenters asserted that the revised definition of
``sex-based harassment'' and the application of Sec. 106.45 to all
other sex discrimination complaints would be more burdensome than
current regulations.
Some commenters recommended changes to the proposed regulations to
alter the burdens on certain recipients. For example, one commenter
suggested a ``safe harbor'' to accommodate religiously affiliated
postsecondary institutions that have codes of conduct and progressive
discipline policies that do not align with the proposed regulations.
The commenter said a ``safe harbor'' might include an institution
stating that it takes allegations of sexual
[[Page 33638]]
assault seriously and maintains a Clery Act reporting record
accordingly. One commenter, a school district, urged the Department to
allow a recipient to develop its own process for responding to
complaints of sex discrimination, including sex-based harassment. The
commenter stated that it conducted three Title IX investigations under
the 2020 amendments, which each averaged 30 hours in mostly paperwork
and document writing. Another commenter estimated that a recipient
would need at least seven employees to administer grievance procedures
under the proposed framework and urged the Department to reduce the
number of staff required to prevent overburdening small recipients.
Discussion: The Department acknowledges the vast diversity among
recipients, the variety of systems used to enforce codes of conduct,
and each recipient's desire to retain flexibility and discretion. The
need for consistent and predictable enforcement of Title IX weighs in
favor of Federal rules standardizing the investigation and resolution
of allegations of sex discrimination under these final regulations. See
85 FR 30096.
The Department acknowledges both that the Title IX grievance
procedures afford strong civil rights protections and ensure a
nondiscriminatory educational environment, and that as commenters
noted, a recipient needs to have a degree of flexibility in structuring
its internal affairs, including with respect to disciplinary decisions.
Under Sec. Sec. 106.45 and 106.46, a recipient retains significant
flexibility and discretion, including with respect to decisions to:
designate the reasonable timeframes that will apply to grievance
procedures (as long as they are ``reasonably prompt''), Sec.
106.45(b)(4); use a recipient's own employees as investigators and
decisionmakers or outsource those functions to contractors, Sec. Sec.
106.8(a)(2) and 106.45(b)(2); use an individual decisionmaker or a
panel of decisionmakers, Sec. 106.45(b)(2); offer informal resolution
options, Sec. 106.45(k); determine which remedies to provide a
complainant or disciplinary sanctions to impose against a respondent
following a determination that sex discrimination occurred, Sec.
106.45(h)(3) and (4); and formulate appeal procedures, Sec. Sec.
106.45(i) and 106.46(i). See also Sec. 106.46(a) (requiring a
postsecondary institution's grievance procedures for resolving
complaints of sex-based harassment involving a student to incorporate
the requirements of Sec. 106.45).
The Department also notes that the final regulations remove
requirements imposed by the 2020 amendments that stakeholders and
commenters identified as overly prescriptive, restrictive, and time-
consuming, including requirements related to written notice in
elementary schools and secondary schools, the requirement to hold a
live hearing, and the prohibition on the single-investigator model. See
87 FR 41467, 41473, 41482. The Department notes that the final
regulations include other specific changes to the requirements of the
2020 amendments that also aim to make grievance procedures less
burdensome without reducing their efficacy or fairness. For example,
the Department leaves it to recipients' discretion to determine whether
to provide written notice of allegations outside the context of
complaints of sex-based harassment involving a postsecondary student.
See Sec. Sec. 106.45(c) and 106.46(c). The Department also gives
postsecondary institutions the discretion to assess credibility through
a live hearing or through another live questioning process when
investigating complaints of sex-based harassment involving a student.
See Sec. 106.46(f)-(g). In addition, like the 2020 amendments, the
final regulations do not require specific disciplinary sanctions after
a determination that sex discrimination occurred or prescribe any
particular form of sanctions or remedy. See 85 FR 30071. Rather,
Sec. Sec. 106.45 and 106.46 prescribe grievance procedures focused on
reaching fair, transparent, and reliable determinations so that a
recipient can address sex discrimination in its education program or
activity and ensure that a complainant receives remedies designed to
restore or preserve equal access to the recipient's education program
or activity.
The Department further disagrees with the assertion that the
additional administrative burden imposed by these regulations would
detract from efforts to identify, prevent, and remedy sex
discrimination. On the contrary, by creating a predictable and clear
framework for resolving complaints of sex discrimination, the final
grievance procedures in Sec. Sec. 106.45 and 106.46 will enhance those
efforts. The Department therefore declines to amend the regulations in
the ways suggested by the commenters, such as allowing a recipient to
develop its own processes to respond to complaints of sex
discrimination.
The Department also disagrees that having one set of grievance
procedures for sex-based harassment and another for other forms of sex
discrimination will create confusion about which requirements apply to
which complaints. The final regulations clearly define ``sex-based
harassment.'' See discussion regarding the definition of ``sex-based
harassment'' in Sec. 106.2. And recipients already have experience
determining what conduct constitutes sex-based harassment, as the 2020
amendments included grievance procedures that applied only to sexual
harassment complaints. These final regulations, which apply to all
forms of sex discrimination and include discrete additional
requirements for a subset of sex-based harassment complaints involving
students at postsecondary institutions, clarify and streamline a
recipient's Title IX compliance obligations as compared to the 2020
amendments.
The benefits of ensuring that sex discrimination complaints are
resolved in a manner that is fair, aims to ensure reliable outcomes,
and meets the requirements of Title IX, justify the burdens of the
final regulations. The Department's discussion in the Regulatory Impact
Analysis provides additional information about how the Department
reached this conclusion.
The Department also declines to adopt a safe harbor to exempt a
recipient from its obligation to adopt and implement grievance
procedures consistent with Sec. Sec. 106.45 and 106.46. With respect
to religious institutions, the Department notes that Title IX does not
apply to an educational institution controlled by a religious
organization for which compliance with Title IX would conflict with
religious tenets of the controlling organization. 20 U.S.C. 1681(a)(3).
Since Congress enacted the exemption for religious institutions, the
authority to eliminate or expand it rests with Congress. For further
explanation of Title IX's religious exemptions, see the discussion of
Religious Exemptions (Section VII).
Further, the Department emphasizes that these final regulations are
promulgated under Title IX and not under the Clery Act. Unlike the
Clery Act, these final regulations apply to all recipients of Federal
financial assistance, which include many entities that are not
institutions of higher education that participate in the Federal
student aid programs under Title IV of the Higher Education Act. For
example, these final regulations apply to elementary schools, secondary
schools, State educational agencies, State vocational rehabilitation
agencies, public libraries, museums, and a range of other entities that
receive Federal financial assistance from the Department and are not
subject to the Clery Act. Accordingly, a safe harbor from a recipient's
obligation to
[[Page 33639]]
implement grievance procedures that partially relies on a recipient's
Clery Act reporting record would be unworkable under Title IX
regulations.
For these reasons, the Department maintains that the final
regulations account for both the administrative concerns commenters
have raised and the need to ensure a nondiscriminatory educational
environment through procedures that are designed to promote fair and
accurate outcomes in addressing sex discrimination complaints.
Changes: None.
4. Bifurcation of Sex-Based Harassment Complaints Between Students and
Employees at a Postsecondary Institution
Comments: Several commenters raised concerns about the distinction
drawn by the proposed regulations between students and employees. Some
expressed confusion about which provision--Sec. Sec. 106.45 or
106.46--applied to which population. Another argued that the
distinction lacked adequate justification, arguing that a postsecondary
student has the same status as an employee and is capable of self-
advocacy. Still others questioned why a recipient's grievance
procedures in the postsecondary context would change based on the
complainant's identity, and asserted instead that due process rights
typically attach to individuals based on their status as a respondent
with a property or liberty interest in their education or employment.
And some commenters urged the Department to only require a
postsecondary institution to comply with grievance procedures
articulated in Sec. 106.46 for sex-based harassment complaints when
the respondent is a postsecondary student, and otherwise apply
grievance procedures established in Sec. 106.45 when the respondent is
an employee.
Discussion: The Department believes that some commenters may have
misunderstood the Department's reasoning for requiring different
grievance procedures. To clarify, a postsecondary institution must
apply grievance procedures consistent with Sec. 106.45 to any
complaint of sex discrimination--including all employee-to-employee
sex-based harassment complaints. See Sec. 106.46(a). In contrast, a
postsecondary institution must apply grievance procedures consistent
with Sec. 106.46 to any sex-based harassment complaint that involves a
student party--including sex-based harassment complaints in which an
employee is the other party. See id.
Contrary to a commenter's assertion that postsecondary employees
and students have the same status, an employee's legal status is
distinct due to the employment relationship between the recipient and
employee. As noted in the July 2022 NPRM, Title IX grievance procedures
must be sufficiently flexible to allow a recipient to also comply with
its obligations under Title VII, using a framework that is suited to
these types of complaints. 87 FR 41459. A recipient may also have
employees who hold a variety of designations, including temporary,
part-time, full-time, at-will, unionized, tenured, and student-
employees--and each category may be entitled to unique grievance
procedures based on their respective employment designations. The
requirement that the recipient's grievance procedures be prompt and
equitable means, in this context, that a recipient's Title IX grievance
procedures for complaints of sex-based harassment involving employees
must function 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. In
contrast, students at postsecondary institutions do not have the
protection of Title VII in their capacity as students. Id. In addition,
as explained in the discussion of Employees below, Sec. 106.45's
requirements are fundamental to a fair process, and the Department
anticipates that many recipients either already (or can easily)
incorporate them in their grievance procedures for sex discrimination
complaints.
To the extent Sec. 106.46 imposes additional requirements, the
benefits of affording a postsecondary student party equitable
participation in grievance procedures justify the limited burdens of
requiring the additional procedural requirements of Sec. 106.46 for
employee-to-student sex-based harassment complaints at a postsecondary
institution. For similar reasons, although some commenters asked the
Department to revise Sec. 106.46 to apply only in cases involving a
student respondent, which the commenters stated would make it easier
for recipient employers to meet other obligations, including under
collective bargaining agreements, the Department does not agree that
such a change is necessary. For additional explanation of the
application of the final regulations' grievance procedures requirements
to employees, see the discussion of Employees below.
Additionally, the Department disagrees with the commenter's
assertion that the justification for imposing additional procedural
requirements when a complaint of sex-based harassment involves a
student party is unsound because students and employees are both
capable of self-advocacy. While many students in postsecondary
institutions are older or nontraditional--including graduate and
professional students--undergraduate students, who tend to be younger
and newly independent adults, make up a significant portion of the
postsecondary student population.\45\ As such, many postsecondary
students would benefit from the additional procedural requirements of
Sec. 106.46. And although the commenter notes that some postsecondary
students may be able to effectively self-advocate, the Department
recognizes that others may not. These final regulations ensure that all
students have the opportunity to participate meaningfully and
effectively in grievance procedures to protect their right to equal
educational opportunities. For similar reasons, the Department declines
the suggestion to limit Sec. 106.46 to complaints of sex-based
harassment to only those cases in which a student is the respondent.
Section 106.46 provides important protections for students who are
complainants even when the respondent is an employee. As noted above
and in the July 2022 NPRM, postsecondary students are often newly
independent, still learning to advocate, and would not be entitled to
have a parent, guardian, or other authorized legal representative
present at meetings or proceedings, unlike students in elementary
schools and secondary schools. 87 FR 41462. Thus, the additional
requirements of Sec. 106.46 are particularly beneficial for a student
in a complaint that involves an employee respondent because an employee
may be afforded additional rights or protections that a student
complainant lacks.
---------------------------------------------------------------------------
\45\ According to the National Center for Education Statistics,
of the 18.6 million students enrolled in degree-granting
postsecondary institutions in 2021, 15.4 million were undergraduate
students and 3.2 million were graduate students. U.S. Dep't of
Educ., Institute of Education Sciences, National Center for
Education Statistics, Characteristics of Postsecondary Students
(Aug. 2023), https://nces.ed.gov/programs/coe/indicator/csb/postsecondary-students. Of the undergraduate student population, 85
percent of full-time undergraduates and 60 percent of part-time
undergraduates were age 25 or younger in 2021. Id. Additionally, the
overall college enrollment rate for 18- to 24-year-olds was 38
percent in 2021. U.S. Dep't of Educ., Institute of Education
Sciences, National Center for Education Statistics, College
Enrollment Rates (May 2023), https://nces.ed.gov/programs/coe/indicator/cpb/college-enrollment-rate.
---------------------------------------------------------------------------
The Department is also unpersuaded by commenters' assertions that
the framework for grievance procedures as
[[Page 33640]]
applied to sex-based harassment complaints that involve a postsecondary
student diverges from how courts have construed due process
requirements. The Supreme Court has made clear that Federal agencies
may use standards in administrative enforcement that differ from those
used by courts to litigate private actions for monetary damages, cf.
Davis, 526 U.S. at 639, and nothing in the final regulations precludes
a recipient from complying with the Due Process Clauses of the Fifth
and Fourteenth Amendments. See 34 CFR 106.6(d); see also discussion of
Sec. 106.6(b).
The Department recognizes that the U.S. Constitution affords due
process protections to individuals who are facing a possible
deprivation of property or liberty interests. However, grievance
procedures specifically adopted for the student population in a
postsecondary institution are needed to carry out Title IX's
nondiscrimination mandate. Accordingly, the Department continues to
believe that the requirements of Sec. 106.46 afford protections that
are appropriate to the age, maturity, independence, needs, and context
of students at postsecondary institutions. The Department also views
the additional provisions of Sec. 106.46 as necessary to address
postsecondary sex-based harassment complaints, which often allege
conduct that is highly personal and of a different nature than other
types of alleged sex discrimination and which typically require greater
participation by a complainant and respondent in grievance procedures
than other complaints of sex discrimination.
Moreover, the additional requirements of Sec. 106.46 are not
necessary for other individuals, including employees, who have
different relationships with postsecondary institutions and 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, and commitment to, due process
as dictated by the particular circumstances. Accordingly, as recognized
in the July 2022 NPRM, the demands of a sex-based harassment complaint
involving a postsecondary student may dictate different procedures than
what might be appropriate in other situations. 87 FR 41462.
Changes: None.
5. Ability To Respond to Threats, Promptly Impose Discipline, or
Address Sex Discrimination
Comments: Some commenters expressed concern that the proposed
regulations would interfere with a recipient's ability to promptly
respond to threats, harassment, and discrimination, even when
significant evidence would support disciplinary action or when the
respondent's conduct also violated rules unrelated to Title IX.
Similarly, another commenter asserted that Sec. 106.45 would create a
separate and more cumbersome process for investigating and disciplining
sex discrimination than what is required for other offenses, and that
such a distinction is not equitable. The commenter used the example of
a recipient being able to take immediate disciplinary action against a
student who commits vandalism, while being required to first implement
grievance procedures for a student who commits the potentially more
serious offense of sexual misconduct. The commenter also asserted that
no other Federal nondiscrimination laws require a complaint process
that would restrict student discipline under State law.
Other commenters expressed concern that the proposed framework
would deter a complainant from pursuing grievance procedures because
they may find them complicated and intimidating.
Discussion: The Department disagrees with assertions that grievance
procedures under Sec. Sec. 106.45 and 106.46 would unnecessarily delay
resolution of complaints or prevent a recipient from removing a
respondent who presents a threat to persons within its education
program or activity. Sections 106.45 and 106.46 specifically require a
recipient to address complaints of sex discrimination and sex-based
harassment ``prompt[ly].'' Sec. Sec. 106.45(a)(1), 106.46(a). Further,
the Department disagrees that the grievance procedures set forth in
Sec. 106.45 prevent a recipient from promptly resolving a complaint
involving an elementary school or secondary school student, and the
commenters have provided no reason to believe that they will. The
Department also notes that it has modified the requirements of the 2020
amendments to address concerns about the length of time it takes to
impose discipline in response to concerns when raised by stakeholders
who expressed difficulty implementing the prior procedures. See 87 FR
41457 (describing stakeholder concerns with lengthy grievance
procedures at the elementary school and secondary school level); id. at
41459 (explaining changes the Department proposed to Sec. 106.45 to
address concerns about challenges the 2020 amendments' grievance
process requirements posed for younger students).
While the Department acknowledges that schools have different
procedures for responding to other types of offenses, it maintains that
the grievance procedures adopted in the 2020 amendments as enhanced and
revised in these final regulations are specifically suited and
necessary to address allegations of sex discrimination, which involve
considerations that are distinct from many other student conduct
offenses, including safeguards to assist a recipient in ensuring an
educational environment free from sex discrimination during the
pendency of grievance procedures. With respect to recipients' ability
to respond to threats, the Department notes that the final regulations
permit a recipient to remove a respondent from its education program or
activity on an emergency basis in certain circumstances, see Sec.
106.44(h), or place an employee respondent on administrative leave from
employment responsibilities during the pendency of a recipient's
grievance procedures, see Sec. 106.44(i). See also discussion of Sec.
106.44(g)(2) and (3), (h), -(i).
The Department acknowledges that a complainant may not wish to
pursue grievance procedures for a variety of reasons. In such
circumstances, the availability of confidential resources, as well as
other actions that a Title IX Coordinator must take upon being notified
of conduct that reasonably may constitute sex discrimination, including
offering and coordinating supportive measures or, if available and
appropriate, offering to resolve a complaint using an informal
resolution process, will mitigate any deterrent effect the grievance
procedures might otherwise have. See Sec. 106.44(f)(1)(ii), (iv), (g),
(k).
Changes: None.
6. Grievance Procedures Appearing as Quasi-Judicial Proceedings
Comments: Some commenters supported removing requirements for
grievance procedures adopted as part of the 2020 amendments that appear
quasi-judicial or mimic the criminal or civil legal system. For
example, some commenters appreciated that Sec. Sec. 106.44, 106.45,
and 106.46 would establish a baseline for grievance procedures that can
be used by non-attorneys, which the commenters stated is more likely to
achieve fairness and safeguards equity and equality. Other commenters
stated
[[Page 33641]]
that the quasi-judicial nature of the procedures adopted in the 2020
amendments deterred students who experienced sexual harassment or
sexual assault from coming forward and weakened protections for these
students. Another commenter stated that the proposed regulations would
allow for a streamlined process more aligned with a recipient's code of
conduct as well as responses to individual complaints. One commenter
indicated that deemphasizing quasi-judicial elements in the proposed
regulations would allow a recipient to apply Title IX in a manner that
addresses systemic forms of abuse, including the potential that an
institution might try to ``cover up'' the discrimination, and that the
proposed requirements for grievance procedures correctly emphasize
preventing re-traumatization and connecting survivors to resources.
Other commenters expressed various concerns about the proposed
regulations. Some stated that recipients are not equipped to adjudicate
complaints, and that even with the Department's proposed changes to the
2020 amendments, the proposed regulations would turn disciplinary
proceedings into overly legalistic quasi-court proceedings. Other
commenters similarly argued that the grievance procedures adopted by
Sec. Sec. 106.45 and 106.46 would create an inappropriate adversarial
environment in educational settings, which they argued would be
particularly inappropriate in an elementary school or secondary school
setting. Still other commenters questioned whether recipient officials
can or should appropriately adjudicate allegations of rape, attempted
rape, sexual assault, or other criminal violations, or whether any
allegation of potentially criminal misconduct should be investigated
only by law enforcement.
Discussion: The Department acknowledges, and agrees with, the
commenters who have expressed support for the revisions to the
grievance procedures adopted in the 2020 amendments. As the Department
explained in the July 2022 NPRM, it proposed to revise some of these
procedures in response to comments from stakeholders that these
procedures were unduly burdensome, deprived recipients of necessary
flexibility to respond to certain circumstances (like addressing
certain behavior on the playground), and discouraged individuals who
had experienced sex discrimination or sex-based harassment from filing
complaints. See 87 FR 41457-63.
The Department agrees that elementary schools, secondary schools,
postsecondary institutions, and other recipients are not courts of law,
but disagrees that the final regulations create overly legalistic or
adversarial grievance procedures in any of these school settings.
Rather, the procedures promote Title IX's nondiscrimination mandate.
They provide a structure for schools to determine whether sex
discrimination or sex-based harassment has occurred, and if it has, to
determine the proper remedies to provide and disciplinary sanctions to
impose, while also complying with due process requirements. Moreover,
with limited exceptions, the final regulations allow a recipient to
address concerns of sex discrimination or sex-based harassment through
other, informal means, when appropriate. See Sec. Sec. 106.44(k),
106.45(k), 106.46(j); see also discussion of Sec. 106.44(k).
With respect to commenter suggestions that serious allegations of
sex-based harassment (such as rape, sexual assault, and other criminal
violations) should be handled by law enforcement as opposed to a
recipient, the Department reiterates what it explained in the preamble
to the 2020 amendments--the Supreme Court has held that sex-based
harassment constitutes sex discrimination under Title IX,\46\ and the
Department is responsible for enforcing Title IX. See 85 FR 30099.
Title IX does not replace redress through civil litigation or the
criminal legal system. Title IX requires a recipient to evaluate, and
as necessary address, allegations that sex discrimination, including
sex-based harassment, has deprived a complainant of equal access to
education, and remedy such situations. Id. And in many instances, a
recipient is the only entity that can take specific action to remedy
sex discrimination in its education program or activity and prevent its
recurrence, such as through changes in academic schedules or living
arrangements, modifications to maintain access to extracurricular
activities or other educational resources, or the imposition of
disciplinary sanctions aligned with a recipient's code of conduct.
Further, Title IX prohibits conduct that is not necessarily criminal in
nature, such as a professor offering to raise a student's grade in
exchange for sexual favors. Accordingly, recipients--not law
enforcement or the courts--are uniquely positioned and required to
carry out Title IX's nondiscrimination mandate.
---------------------------------------------------------------------------
\46\ See, e.g., Gebser, 524 U.S. at 278, 292 (holding that a sex
offense by a teacher against a student--and noting that the offense
was one for which the teacher had been arrested--constituted sex
discrimination prohibited under Title IX).
---------------------------------------------------------------------------
The Department further acknowledges commenters' concerns that
recipients exist primarily to educate, and are not courts with a
primary purpose, focus, or expertise in administering procedures to
resolve factual disputes. The Department also notes that a recipient
may view its code of conduct as an educational process rather than a
punitive process and acknowledges that such a recipient may be
uncomfortable with grievance procedures in which the fact-finding
process is more adversarial. With respect to sex discrimination covered
under Title IX, however, the recipient must administer grievance
procedures designed to reach reliable factual determinations and do so
promptly and equitably. Doing so is necessary to ensure that all
members of a recipient's community are not discriminated against on the
basis of sex. The Department recognizes that in the context of sex-
based harassment, the grievance procedures may be more adversarial in
light of the serious nature of the alleged misconduct, and the high
stakes that the outcome of the process will have for all parties. But
the Department does not see any basis for concluding that the grievance
procedures set forth in Sec. 106.46 are inconsistent with a
recipient's desire to maintain a code of conduct that prioritizes
education and accountability over punishment. The Department also notes
that Sec. Sec. 106.45 and 106.46 provide a recipient discretion to
create grievance procedures that may be more or less adversarial, such
as by deciding whether to hold live hearings (Sec. 106.46(g)) or how
parties and witnesses are questioned (Sec. Sec. 106.45(g) and
106.46(f)).
Changes: None.
7. Consistency With Other Civil Rights Laws That OCR Enforces
Comments: Some commenters expressed concern that the proposed
regulations would apply different standards to allegations of sex-based
harassment than to allegations of discrimination under the other civil
rights laws that OCR enforces, which commenters asserted could lead to
inconsistent enforcement of civil rights laws.
Commenters noted a single complaint may allege discrimination on
multiple bases and asked the Department to clarify how a recipient
should respond to such complaints. Commenters also suggested that the
proposed regulations permit a recipient to consider more than one
identity at a time (e.g., sex, race,
[[Page 33642]]
disability, citizenship status, national origin) when responding to
complaints to promote efficiency, reduce any burden on the parties, and
recognize the multidimensional nature of sex-based harassment, and some
commenters included the example of Asian women being especially
vulnerable to attacks based on race and sex. One commenter recommended
that the Title IX Coordinator collaborate with a recipient's staff who
coordinate compliance with Title VI and Section 504 so students do not
have to go through multiple processes.
Discussion: As commenters noted, these final regulations are
limited to Title IX and impose no new requirements for grievance
procedures under Title VI, Section 504, or the ADA. The Department will
continue to enforce regulations under those laws, and a recipient must
comply with all regulations that apply to a particular allegation of
discrimination (including allegations of harassment on multiple bases)
accordingly. For more information on the standards applicable to
grievance procedures under the civil rights laws that the Department
enforces, see the discussion of Sec. 106.44(a). The Department does
not agree that the final regulations' requirements for sex-based
harassment cases are incongruous with standards under other laws. In
fact, these final regulations set forth grievance procedure
requirements in Sec. Sec. 106.45 and 106.46 to align more closely with
the standards used to address harassment under the other statutes that
OCR enforces. See 34 CFR 104.7(b). For example, the definition of
``sex-based harassment'' in Sec. 106.2, which is applied in grievance
procedures consistent with Sec. Sec. 106.45 and 106.46, more closely
aligns with the hostile environment analysis that OCR applies to
complaints of harassment based on race, color, national origin, or
disability for administrative enforcement purposes. See 87 FR 41416
(citing 1994 Racial Harassment Guidance; U.S. Dep't of Educ., Office
for Civil Rights, Dear Colleague Letter: Prohibited Disability
Harassment (July 25, 2000), https://www2.ed.gov/about/offices/list/ocr/docs/disabharassltr.html; 2010 Harassment and Bullying Dear Colleague
Letter, at 1-2).
The Department agrees that a single complaint can raise allegations
of discrimination on multiple bases. If all of the allegations in a
complaint relate to sex discrimination (e.g., harassment based on
sexual orientation and gender identity), the allegations can be made in
a single complaint and investigated and resolved at the same time under
a recipient's Title IX grievance procedures. When allegations involve
sex discrimination and discrimination on another basis, a recipient
must handle the allegations of sex discrimination under its Title IX
grievance procedures but would not be required to handle allegations
not alleging sex discrimination under its Title IX grievance
procedures. As noted in the preamble to the 2020 amendments, a
recipient has discretion to determine whether a non-sex-discrimination
issue such as race discrimination should go through grievance
procedures like those set forth in Title IX regulations. 85 FR 30449.
The same is true under these final regulations. For instance, if
allegations of sex-based harassment arise out of the same facts and
circumstances as allegations of race discrimination under Title VI, the
recipient has the discretion to use grievance procedures consistent
with Sec. 106.45, and if applicable Sec. 106.46, to address sex and
race discrimination or choose a different process that complies with
the Department's regulations implementing Title VI to address the
allegations of race discrimination. Cf. id. (explaining that a
recipient has discretion to use a grievance process consistent with the
2020 amendments to address a sexual harassment allegation that also
implicates Title VI). Similarly, if a complaint raises allegations
pertaining to sex and disability discrimination, a recipient has
flexibility to use a single grievance procedure provided such procedure
complies with relevant standards under Title IX and any disability laws
that may apply. See, e.g., 34 CFR 104.7(b). Nothing in the final
regulations precludes a recipient from processing allegations that do
not involve sex discrimination simultaneously with allegations of sex
discrimination as long as doing so does not prevent the recipient from
complying with these final regulations. The Department emphasizes that
these final regulations apply to all individuals who allege or who have
allegedly engaged in sex discrimination under Title IX irrespective of
race or other demographic characteristics. In addition, nothing in the
final regulations precludes a recipient from having its Title IX
Coordinator collaborate with staff who coordinate compliance with Title
VI and Section 504.
Changes: None.
8. Elementary Schools and Secondary Schools
General Support and Opposition
Comments: Some commenters supported the proposed regulations
because they would improve Title IX enforcement in elementary schools
or secondary schools, and some commenters asserted that instances of
sex-based harassment are both underreported and on the rise. Some
commenters appreciated that the proposed regulations included less
complex grievance procedures for an elementary school or secondary
school--such as oral complaints without signatures--which would be less
burdensome, more developmentally appropriate, and more likely to help
young students draw connections between a behavior and its outcome.
Other commenters argued that some provisions in the 2020
amendments, including requirements to share evidence and mandatory
investigative reports, are inappropriate in an elementary school or
secondary school and could also conflict with State laws related to
student discipline. One commenter, a school district, noted that its
student disciplinary proceedings are subject to the U.S. Constitution,
State law, local regulations, and other Federal regulations. The
commenter asserted that this complex legal framework already provides
students substantive and procedural due process such as, under New York
law, a requirement to conduct a hearing within five days of imposing a
suspension of five or more days, including the opportunity to present
and question evidence and witnesses; and a manifestation determination
review hearing no more than ten school days after imposing a
disciplinary change in placement for a student with a disability.
Other commenters appreciated that the proposed regulations would
allow informal resolution of some complaints and provide an educator
flexibility to address harassment consistent with the age of the
student and nature of the allegation. Some commenters stated that under
the 2020 amendments, the time to complete investigations related to
bullying and harassment increased significantly. Commenters stated that
those delays exacerbated harms to K-12 students who have experienced
(and are still experiencing); increased mental health and academic
challenges related to the COVID-19 pandemic; and made it more difficult
for administrators--who are already figuring out how to comply with
legal requirements related to sex and gender identity that differ from
State to State, and historic teacher
[[Page 33643]]
and administrator staffing shortages--to respond to these concerns.
In contrast, some commenters expressed concern that the proposed
regulations would increase administrative and staffing burdens on
elementary schools and secondary schools. One commenter asserted that
the Department underestimated the resources required to implement the
proposed regulations and overestimated recipients' administrative
capacity.
Still other commenters argued the Department should limit
differences in grievance procedures requirements between educational
levels and suggested that the Department broadly apply one set of
reasonable requirements for grievance procedures for sex-based
harassment that would afford flexibility regardless of the recipient or
status of the parties.
Finally, one commenter suggested that the Department draw from
State anti-bullying laws in its grievance procedures' requirements
because these laws are in effect in all 50 States, have been in
practice over a lengthy period, and set forth investigative models
uniquely suited to the educational contexts in which they are used.
Discussion: The Department acknowledges comments in support of the
proposed framework for grievance procedures as applied to an elementary
school or secondary school. As noted in the July 2022 NPRM, Sec.
106.45 reflects significant feedback from stakeholders related to the
unique needs of elementary and secondary students and school
communities, as well as requests to reduce some of the burdens the 2020
amendments imposed on these schools. 87 FR 41457-58. The Department has
determined that grievance procedures that apply to complaints of sex
discrimination at elementary schools and secondary schools must account
for the particular context of those schools, including the younger
student population, which is distinct from the postsecondary context.
In addition to compulsory attendance rules and the need for age-
appropriate standards for classroom behavior, parents, guardians, or
other authorized legal representatives have a legal right to be present
and assist their child in Title IX grievance procedures in the
elementary school and secondary school setting. Section 106.45 would
not alter those rights, as explained in the discussion of the rights of
parents and other authorized individuals in Sec. 106.6(g). This legal
authorization for an adult representative does not apply to most
students at postsecondary institutions. The Department also agrees with
commenters that a lengthier process for elementary and secondary
students is less effective and less developmentally appropriate for
addressing sex discrimination.
The Department recognizes that some commenters would have preferred
that Sec. 106.45 include fewer requirements for grievance procedures
at the elementary school and secondary school level based on their
assertion that the proposed regulations insufficiently address the
challenges schools faced implementing the 2020 amendments. However, as
explained in the discussion of due process above and in greater detail
in the discussion of each of Sec. 106.45's provisions, these
requirements are necessary to afford fair, reliable grievance
procedures. See generally discussion of Sec. 106.45. The Department
also heard from a range of commenters in response to the proposed
regulations--including elementary schools and secondary schools and
entities that represent them--that the proposed grievance procedures
requirements were well suited to address sex discrimination complaints
in their settings. Accordingly, we disagree with comments asserting
that Sec. 106.45 would overburden a recipient, deprive complainants or
respondents in elementary schools or secondary schools of procedural
protections necessary to ensure fairness, or inadequately account for
the differences between a postsecondary institution and an elementary
school or secondary school. For additional discussion of how the
Department assessed the benefits and burdens of the grievance
procedures requirements, see the Regulatory Impact Analysis, below.
The grievance procedures under Sec. 106.45 provide important
protections to ensure an educational environment that is free from sex
discrimination as required by Title IX. The grievance procedure
requirements are also consistent with Supreme Court precedent governing
student discipline cited by commenters \47\ because they include notice
and an opportunity for the respondent to be heard before the imposition
of discipline. Compare Goss, 419 U.S. at 579 (``[a]t the very minimum .
. . 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.'' (emphasis in original)), with Sec.
106.45(c) (requiring notice of allegations), (f)(2) (requiring equal
opportunity for the parties to present fact witnesses and relevant and
otherwise not impermissible evidence), (f)(4) (requiring equal
opportunity for the parties to access and respond to relevant and not
otherwise impermissible evidence), (h)(4) (requiring compliance with
grievance procedures before the imposition of any disciplinary sanction
against a respondent). To the extent there are conflicting State law
requirements or differences between the Department's Title IX
regulations and a recipient's other student conduct processes, the
Department reiterates that a recipient must fulfill its obligations
under Title IX, as explained in greater detail in the discussion of
Sec. 106.6(b). See discussion of Sec. 106.6(b).
---------------------------------------------------------------------------
\47\ Commenters cited Goss, 419 U.S. 565.
---------------------------------------------------------------------------
Moreover, to the extent some recipients expressed a preference for
greater flexibility, the Department appreciates the opportunity to
reiterate that a recipient retains discretion to offer an informal
resolution process under Sec. 106.44(k) for most allegations of sex
discrimination. Informal resolution processes can play a significant
role in addressing commenters' concerns that complying with each of
Sec. 106.45's requirements might not be appropriate in every case.
Further, nothing in the final regulations prohibits a recipient
from using an existing process that otherwise satisfies the
requirements of Sec. 106.45 to investigate and resolve Title IX
complaints, such as investigation and grievance procedures that are
consistent with State anti-bullying or student discipline laws.
Although processes required under different laws and policies may in
some instances comply with the requirements of Sec. 106.45, and in
those cases may be used by a recipient to address complaints of sex
discrimination as discussed below, the Department continues to believe
that a uniform Federal standard is required for compliance with Title
IX. See discussion of Administrative Burdens above (discussing the need
for a uniform standard, while also preserving recipients' flexibility);
see also 85 FR 30096 (``The need for Title IX to be consistently,
predictably enforced weighs in favor of Federal rules standardizing the
investigation and adjudication of sexual harassment allegations under
these final regulations, implementing Title IX.'').
Changes: None.
Applicability and Other Considerations
Comments: Some commenters asserted that the proposed regulations'
application to elementary schools and secondary schools would violate
Title IX because, in their view, Title IX applies only to postsecondary
institutions. Some commenters urged the Department to provide more
[[Page 33644]]
descriptions and examples of how grievance procedures can be
implemented effectively and appropriately for different age groups in
an elementary school or secondary school. One commenter requested
clarification on how definitions and terms should be explained in an
elementary school setting where, the commenter asserted, students and
parents may lack the necessary maturity and legal context,
respectively, to understand defined terms. Other commenters expressed
concern that Sec. 106.45 would subject minor complainants to repeated
questioning about alleged abuse and suggested that the Department
clarify it is not an elementary school or secondary school's role to
investigate an allegation of child abuse, but rather to refer such a
case to appropriate entities that are better equipped to investigate
and coordinate wrap-around services, such as child advocacy centers and
multidisciplinary teams.
Discussion: The Department appreciates the opportunity to correct
the misunderstanding that Title IX is limited to postsecondary
institutions. As recipients of Federal financial assistance, elementary
schools and secondary schools are also subject to Title IX and its
regulations. 20 U.S.C. 1681. Accordingly, a recipient has a legal duty
to operate its education program or activity free from sex
discrimination, which necessitates grievance procedures for the prompt
and equitable resolution of sex discrimination complaints.
The Department also appreciates the opportunity to clarify that
nothing in the final regulations requires a recipient to repeatedly
question a complainant who may be a minor about alleged sex
discrimination, which the Department acknowledges could be traumatizing
depending on the nature of the allegation. This consideration is one of
the reasons these final regulations, consistent with the 2020
amendments, do not require live hearings at the elementary school and
secondary school level. See 85 FR 30484-85; 87 FR 41460-63. The
Department also notes that these final regulations do not require a
recipient to create separate grievance procedures if an existing
process satisfies the requirements of Sec. 106.45, which could further
reduce the need for a minor student to repeatedly disclose a traumatic
experience in multiple proceedings. The Department acknowledges that a
recipient may want to take into account the age and developmental level
of their students when structuring grievance procedures, and notes that
any questions a decisionmaker asks of parties and witnesses as part of
the process for assessing a party's or witness's credibility under
Sec. 106.45(g) must be relevant and not otherwise impermissible under
Sec. Sec. 106.2 and 106.45(b)(7). Further, when child abuse
allegations arise during the course of Title IX grievance procedures,
the Department has determined that a recipient has an important role to
play in addressing that abuse. Nothing in the final regulations
prohibits a recipient from consulting or partnering with organizations
that have expertise in trauma-informed investigations of child sexual
abuse in a manner consistent with Sec. 106.44(j), such as child
advocacy centers and multidisciplinary teams, to create and implement
grievance procedures that satisfy Sec. 106.45.
In response to questions about how proposed definitions and terms
should be explained to elementary school students and parents, the
Department notes that a recipient retains discretion in how it
communicates with students, parents, and other stakeholders about what
constitutes sex discrimination, including sex-based harassment, and how
the grievance procedures operate, as long as the recipient effectively
conveys what its obligations are and what rights other parties have
under Title IX. The Department notes that, in general, using
terminology in the final regulations facilitates the Department's
enforcement efforts by making it easy to compare a recipient's
published grievance procedures to the Title IX regulations.
Nonetheless, the Department acknowledges that different terminology may
be more appropriate and understandable depending on the age, maturity,
and educational level of a recipient's student population, and
therefore has provided a recipient with that flexibility.
The Department declines to provide examples for how grievance
procedures can be implemented effectively and appropriately for
different age groups in an elementary school or secondary school at
this time. However, it will offer technical assistance, as appropriate,
to promote compliance with these final regulations.
Changes: None.
9. Employees
General Support and Opposition
Comments: Some commenters supported the proposed framework for
grievance procedures, which they stated would allow Title VII and
collective bargaining agreements to primarily govern employee-to-
employee harassment. Commenters also appreciated that the framework
would acknowledge that a postsecondary institution may have a variety
of employee designations, which may be entitled to unique grievance
procedures based on their designation and applicable collective
bargaining agreement.
In contrast, several commenters questioned the appropriateness of
the proposed framework to a complaint involving an employee. Some
commenters argued that applying these procedures to employees is
unnecessary because such complaints are addressed by Title VII,
collective bargaining agreements, employee handbooks, and institution-
specific regulations. Others asserted that applying Sec. 106.45 to
employees would conflict with or displace well-established processes
under Title VII and State employment and nondiscrimination laws; or
asked for clarification on how the proposed regulations would interact
with contradictory State and local laws, recipient policies governing
faculty rights, and union grievance procedures or collective bargaining
agreements. Still other commenters expressed concern that Sec. 106.45
would require a recipient to maintain one set of grievance procedures
for workplace sex discrimination complaints and another set of
procedures for other kinds of workplace discrimination complaints (such
as those involving race), which commenters stated would expose the
recipient to an allegation that they deprived a party of due process by
choosing the wrong set of procedures. Other commenters further asserted
that applying the more detailed requirements of Sec. 106.46 to
employee-involved complaints would be even more likely to conflict with
procedures in employee handbooks, collective bargaining agreements, and
at-will employment than would Sec. 106.45.
Some commenters sought clarification on whether Sec. 106.46 would
require identical grievance procedures for both student and employee
respondents. Commenters asserted that requiring a postsecondary
institution's grievance procedures to be the same for any sex-based
harassment complaint could result in complicated and confusing
grievance procedures for some recipients, due to various obligations
under State law regarding student discipline and tenured faculty
agreements.
One commenter suggested that the Department consult with the EEOC
and issue joint guidance on how to minimize potential conflicts between
the obligations of claimants under Title VII and respondents under
Title IX.
[[Page 33645]]
Finally, a few commenters asked for clarification regarding employees
and the grievance procedures set forth in Sec. Sec. 106.45 and 106.46.
One commenter requested clarification on the definition of ``employee''
under the proposed regulations. Another commenter asked the Department
to clarify when an OCR complaint that pertains to employee-to-employee
harassment would be investigated by OCR and when such a complaint would
be dismissed and transferred to the EEOC.
Discussion: The Department acknowledges support for the framework
for grievance procedures as applied to complaints that involve an
employee, which the Department agrees provides the flexibility needed
to align with a recipient's existing workplace policies. The Department
disagrees that these regulations are unnecessary because of Title VII,
collective bargaining agreements, employee handbooks, or institution-
specific policies or procedures. Congress did not limit the application
of Title IX to students. See 20 U.S.C. 1681. Title IX, thus, applies to
all sex discrimination occurring in a recipient's education program or
activity in the United States. The Department's regulations have long
addressed employees. For example, 34 CFR part 106, subpart E expressly
addresses discrimination on the basis of sex in areas unique to
employment. Indeed, prior to the establishment of the Department of
Education, the Supreme Court noted that the Department of Health,
Education, and Welfare's ``workload [was] primarily made up of
`complaints involving sex discrimination in higher education academic
employment.' '' Cannon, 441 U.S. at 708, n.42.
The Department acknowledges that Title VII and Title IX impose
different requirements in some respects and that many recipients will
need to comply with both Title VII and Title IX. The Department
disagrees that there are inherent conflicts in complying with the two
laws and commenters did not identify any such conflict. We are also
unpersuaded by the assertion that a recipient will be exposed to an
allegation that it deprived a party of due process by choosing the
wrong set of procedures. As noted in the preamble to the 2020
amendments, Congress enacted both Title VII and Title IX to address
discrimination in different contexts. See 85 FR 30442. Congress enacted
Title IX to address sex discrimination in any education program or
activity receiving Federal financial assistance, whereas Congress
enacted Title VII to address sex discrimination (and discrimination on
other bases) in the workplace. Id. As commenters also acknowledge, the
Supreme Court has recognized differences in the circumstances under
which liability may be incurred for sex discrimination under Title IX
and Title VII. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 765 (1998) (affording affirmative defense to vicarious liability
of employers for the sexual harassment of their employee supervisors
when ``the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior'' and the employee plaintiff
``unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer''); Gebser, 524 U.S. at 283
(describing differences between Title VII and Title IX to explain the
scope of relief available under Title IX's judicially recognized
implied private cause of action); see 85 FR 30199, 30443. In light of
these differences, the Department may reasonably establish protections
for complainants and respondents in education-related sex
discrimination complaints that are not the same as for parties in
employment-related sex discrimination complaints under Title VII, and
that could result in different outcomes. 85 FR 30442.
As discussed in the July 2022 NPRM, the requirements for grievance
procedures under Sec. 106.45 set baseline standards to ensure a fair
process under Title IX, including the equitable treatment of the
parties; decisionmakers who are free of bias or conflicts of interest;
adequate notice to the parties of the allegations and timeframes for
grievance procedures; guidelines for ensuring the adequate, reliable,
and impartial investigation of the complaint; the opportunity for
parties to present evidence; and guidelines for how a decisionmaker
must assess such evidence and credibility. 87 FR 41461. The Department
anticipates that many recipients already have similar protections in
their existing procedures for addressing discrimination, but to the
extent that the additional procedural requirements imposed by the final
regulations exceed the protections that a recipient already has in
place, the benefits of these procedures justify any burden. The
Department also wishes to clarify that nothing in these regulations
prohibits a recipient from using an existing process to satisfy the
requirements of Sec. Sec. 106.45 or 106.46, such as grievance
procedures set forth in a collective bargaining agreement or other
contractual agreement between the recipient and its employees, as long
as those procedures do not conflict with the requirements of Sec. Sec.
106.45 and 106.46. Although the Department anticipates that a recipient
will be able to implement Sec. Sec. 106.45 and 106.46 in a manner that
does not conflict with State and local law, collective bargaining
agreements, union grievance procedures, and recipient policies
governing faculty rights, it reiterates that if a conflict arises, a
recipient must fulfill its obligations under Title IX. See Sec.
106.6(b); discussion of Sec. 106.6(b).
The Department appreciates the opportunity to clarify that all
recipients must implement grievance procedures that are consistent with
Sec. 106.45 or offer informal resolution consistent with Sec.
106.44(k), as available and appropriate, to resolve an allegation of
sex discrimination. Only a recipient that is a postsecondary
institution has an additional obligation to implement grievance
procedures consistent with Sec. 106.46, and this obligation is limited
to resolving allegations of sex-based harassment in which either the
complainant or respondent is a student. Consistent with this framework,
final Sec. 106.45 sets forth baseline requirements to resolve any
allegation of sex discrimination, including sex-based harassment, that
occurs in an elementary school, secondary school, and other recipients
such as State educational agencies; as well as any allegation of
employee-to-employee sex-based harassment and student-involved sex
discrimination complaints that do not allege sex-based harassment. And
while a recipient may choose to implement a single procedure for all of
its complaints (as long as the single procedure satisfies the
requirements of Sec. 106.45, and if applicable Sec. 106.46), it may
choose otherwise for various reasons, such as to comply with its other
obligations under Federal, State, or local law. Nothing in the final
regulations prohibits a postsecondary institution from, for example,
choosing to maintain one set of grievance procedures for employee-to-
employee sex-based harassment complaints that are consistent with Sec.
106.45 and its legal or contractual requirements on employee-involved
complaints; one set of grievance procedures for employee-to-student
sex-based harassment complaints that are consistent with Sec. 106.46
and those same legal or contractual requirements; and another set of
grievance procedures for student-to-student sex-based harassment
complaints that are consistent with Sec. 106.46 and State law
governing student discipline.
The Department appreciates the opportunity to note that OCR's Case
Processing Manual explains which complaints that allege employee-to-
[[Page 33646]]
employee discrimination within a recipient's education program or
activity OCR will investigate and which it will refer to the EEOC. See
Case Processing Manual, at 26-27 (citing 29 CFR 1691.11697.13; 28 CFR
42.60142.613). The Department notes that its existing procedures
require coordination with the EEOC and reiterates its longstanding
commitment to working closely with other Federal agencies, including
the EEOC, to ensure robust enforcement of Federal civil rights
protections. The Department understands that supporting a recipient in
the implementation of these regulations and ensuring that individuals
know their rights under Title IX is important and will offer technical
assistance, as appropriate, to promote compliance with these final
regulations.
The Department declines to further clarify the definition of
``employee'' or to otherwise specify the types of individuals who are
considered employees. As explained in the discussion of training
requirements in Sec. 106.8(d), given the wide variety of arrangements
and circumstances in place across recipients and variations in
applicable State employment laws, a recipient is best positioned to
determine who is an ``employee.'' For further explanation of the scope
of individuals covered by the employee reporting obligations in Sec.
106.44(c) and the scope of employees who must be trained under Sec.
106.8(d), see the discussion of those provisions.
Changes: None.
At-Will Employment and Collective Bargaining
Comments: Some commenters expressed concern that the grievance
procedure requirements would interfere with a recipient's at-will
relationship with its employees and erode at-will employment. They also
stated that the grievance procedure requirements would create an
arbitrary layer of extra protection for an employee who allegedly
engaged in sex discrimination that does not exist for other alleged
employee misconduct, such as race-based discrimination, stealing from
the employer, bullying, or general poor performance.
Some commenters also argued that, because at-will employees
typically are not entitled to any due process protections under
existing Federal and State law, imposing such requirements through
Sec. 106.45 would exceed the Department's regulatory authority. In
contrast, one commenter recommended that the Department revise the
proposed regulations to account for inequities in a postsecondary
institution's hierarchy that provide different procedural protections
depending on an employee's status.
In addition, some commenters stated that Sec. Sec. 106.45 and
106.46 would interfere or conflict with the collectively bargained or
other contractual employment relationships that many recipients have
with their employees, which already include procedures and
justifications for discipline and termination of employment. Some
commenters noted that this concern is especially acute for a recipient
that has multiple bargaining units or collective bargaining agreements,
each of which may have different disciplinary grievance procedures.
Indeed, some commenters noted that some recipients had changed or
initiated collective bargaining procedures in response to the 2020
amendments, and that those changes had created confusion and
inconsistent treatment of civil rights matters. Another commenter noted
that the 2020 amendments had effectively required a recipient to
institute a cumbersome two-tiered process for employee respondents in
order to comply with both those amendments and State civil service
laws. The commenter argued that this approach likely results in a
chilling effect for complainants who do not wish to testify in multiple
hearings or risk re-traumatization. The commenter added that lengthy
Title IX grievance procedures could cause a recipient to miss the
narrow statute of limitations outlined in certain collective bargaining
agreements for discipline charges.
Other commenters asked for clarification about the interaction
between collective bargaining agreements and the grievance procedures.
One commenter noted that a recipient may have processes in place that
comply with collective bargaining agreements that are unrelated to a
recipient's grievance procedures but that would not comply with all of
the requirements for grievance procedures in the proposed regulations,
and asked whether the Title IX regulations should take precedence over
other procedures. Finally, one commenter recommended that the
Department ensure that a recipient consult with unions to write
grievance procedures that comply with applicable collective bargaining
agreements, while another added that recipients have lacked sufficient
guidance about how to appropriately renegotiate or clarify collective
bargaining agreements.
Discussion: The Department acknowledges that a recipient, like most
employers, may have different types of employees, including unionized
and at-will employees. As was the Department's position in the preamble
to the 2020 amendments, the Department maintains that all employees
covered by Title IX should be afforded prompt and equitable grievance
procedures when they are subjected to, or alleged to have engaged in,
sex discrimination; and that an employee's position, tenure, part-time
status, or at-will status, should not dictate whether that employee is
subject to the procedural requirements of the Department's Title IX
regulations. See 85 FR 30445.
As explained above in the discussion of due process and the
Department's assessment of what process is due in different
circumstances, the Department has determined that, when Title IX is
implicated, the protections and rights set forth in these final
regulations represent the most effective ways to promote Title IX's
nondiscrimination mandate while also ensuring that all parties receive
the process they are due. Contrary to commenters' assertions, the fact
that the protections required under the final regulations may exceed
the due process protections afforded to at-will employees under other
Federal and State law does not mean that the final regulations exceed
the Department's authority under Title IX. Moreover, a recipient of
Federal financial assistance operating an education program or activity
agrees to comply with Title IX obligations as a condition of receiving
Federal funds. Those requirements include the longstanding obligation
to adopt and publish grievance procedures to promptly and equitably
resolve sex discrimination complaints that has existed in Title IX
regulations since 1975. 34 CFR 106.8(c) (formerly 45 CFR 86.8); see 40
FR 24139. Recipients' contractual arrangements with employees must
conform to Federal law, as a condition of receipt of Federal funds.
The Department acknowledges commenters' concern that the final
regulations may impede a recipient's ability to terminate an at-will
employee who is engaging in sex discrimination. However, Title IX does
not distinguish amongst employees based on employment status. The
procedural protections afforded by these final regulations for Title IX
investigations and grievance procedures promote fair, transparent, and
reliable outcomes for all employees. And requiring certain measures
before the imposition of disciplinary sanctions--including sanctions
imposed upon employees--ensures that those sanctions are not themselves
applied in a way that
[[Page 33647]]
discriminates on the basis of sex. See, e.g., New York, 477 F. Supp. 3d
at 295 (stating that the Department can impose grievance procedures
``in order to ensure nondiscriminatory treatment of both complainants
and respondents''). For a description of the Department's assessment of
the benefits and costs of complying with the grievance procedures'
requirements, including the Department's determination that the
benefits outweigh any burdens, see the discussion of the Regulatory
Impact Analysis.
For related reasons, the Department declines to modify the
grievance procedures to eliminate any employment ``hierarchy'' or
otherwise interfere with the different statuses or employee
designations within a recipient. 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. Such
flexibility addresses recipient concerns about overly prescriptive
requirements because a range of different procedures could address what
a recipient understands as differing needs while still satisfying a
recipient's obligations under Title IX and these final regulations.
The Department disagrees with commenters' assertions that
Sec. Sec. 106.45 and 106.46 may chill complainants from accessing
grievance procedures or cause a recipient to miss the statute of
limitations to impose discipline on an employee respondent. First, as
explained above, these final regulations do not require a recipient to
create separate grievance procedures if an existing process satisfies
the requirements of Sec. 106.45, and if applicable Sec. 106.46.
Accordingly, a recipient may avoid undue delay or multiple proceedings
by using a single set of procedures that meet a recipient's obligations
under Title IX and any other obligations that are not contrary to those
obligations, including current collective bargaining or other
agreements governing employee discipline procedures.
Further, the Department reiterates that the procedural requirements
under Sec. Sec. 106.45 or 106.46 are important to protect the due
process rights of complainants and respondents, and, therefore, they
are not arbitrary to the extent they differ from protections afforded
for other types of misconduct.
Additionally, the Department notes that nothing in these
regulations interferes with a recipient's ability to negotiate a
grievance process within a collective bargaining agreement that is
distinct from grievance procedures under Title IX. Nor do these
regulations interfere with a recipient employee's right to pursue
remedies under an applicable collective bargaining agreement instead of
making a complaint to initiate grievance procedures under Title IX.
However, if an employee chooses to pursue a remedy under a collective
bargaining agreement, and that process does not include baseline
requirements consistent with Sec. 106.45, and if applicable Sec.
106.46, there can be no finding of responsibility or disciplinary
action against an individual respondent for sex discrimination under
Title IX. Further, an employee's decision to pursue a remedy under an
applicable collective bargaining agreement rather than under the Title
IX grievance procedures would not alleviate the Title IX Coordinator's
obligation to determine whether to initiate a sex discrimination
complaint under the recipient's Title IX grievance procedures by making
a fact-specific determination consistent with Sec. 106.44(f)(1)(v) and
to comply with Sec. 106.44(f)(1)(vii).
The Department acknowledges that a recipient may have relied on or
incorporated the 2020 amendments into new collective bargaining
agreements, and the Department considered such reliance interests in
crafting these final regulations, which either maintain the
requirements of the 2020 amendments or make certain provisions
permissive rather than mandatory. See, e.g., Sec. Sec. 106.45(d)(1),
106.46(g). The Department also notes that collective bargaining
agreements generally recognize an entity's obligation to comply with
applicable laws and contain procedures for consultation and discussion
when the law or applicable regulations change.
To the extent a collective bargaining agreement applies to Title IX
complaints and does not currently comply with the Title IX regulations,
recipients may need to renegotiate their collective bargaining
agreements. While such negotiations may cause disruptions, the
Department concludes that the benefits of the final regulations--both
in terms of ensuring that a recipient complies with Title IX's
nondiscrimination mandate and ensuring that all participants in the
grievance procedures receive the process they are due--justify the
burdens. However, nothing in these regulations prohibits a recipient
from using an existing process to satisfy the requirements of
Sec. Sec. 106.45 or 106.46, such as grievance procedures under a
collective bargaining agreement or other contractual agreement between
the recipient and employees, as long as they meet the requirements of
these final regulations. An existing collective bargaining agreement
would not be out of compliance with this part if it adopts an option
presented in the final regulations, such as a live hearing, or if it
sets forth additional procedural requirements, such as designated
timeframes for stages of an investigation, as long as such provisions
apply equally to the parties. See Sec. 106.45(j). As discussed in the
July 2022 NPRM, equal treatment does not require identical treatment
and a recipient's grievance procedures may recognize that an employee
party 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. 87 FR 41491.
The Department does not have the authority to require consultation
between a recipient and a union. See generally 29 U.S.C. 151-169
(codifying the National Labor Relations Act). However, the Department's
final regulations do not prohibit a recipient from consulting with
unions to create grievance procedures within collective bargaining
agreements that comply with Sec. Sec. 106.45 and 106.46.
The Department declines to further specify how collective
bargaining agreements may interact with a recipient's obligation to
implement grievance procedures consistent with Sec. 106.45, and if
applicable Sec. 106.46, because this is a fact-specific inquiry that
depends on the specific contractual agreement and regulatory provision
at issue.
Changes: None.
Request To Modify the Application of Grievance Procedures
Comments: Commenters suggested a range of modifications to alter
the proposed framework for grievance procedures as applied to sex
discrimination complaints that involve an employee. Some commenters
recommended that the Department not prescribe specific grievance
procedures for sex discrimination or sex-based harassment complaints
involving an employee respondent, asserting that applying Sec. Sec.
106.45 and 106.46 to an employee-to-student complaint may intimidate
potential student complainants and substantially impede reporting.
[[Page 33648]]
Discussion: For reasons articulated above, the Department declines
to modify the framework for grievance procedures as applied to sex
discrimination complaints that involve an employee complainant or
respondent. Title IX applies to all sex discrimination occurring under
a recipient's education program or activity in the United States,
regardless of the identity of the person that alleged or engaged in sex
discrimination.
The Department declines to remove the requirement that a recipient
apply Sec. Sec. 106.45 and 106.46 grievance procedures to employee-
involved complaints because students and employees in such complaints,
including faculty and student workers, should have access to equitable
grievance procedures that are designed to ensure a fair, transparent,
and reliable process, including procedures that may result in the
termination or suspension of a respondent. Grievance procedures
consistent with Sec. 106.45 will meet this standard for sex
discrimination complaints that involve an employee.
Regarding concerns that such grievance procedures may be
intimidating to student complainants in student-to-employee complaints,
these final regulations include several provisions to mitigate power
imbalances and address concerns that some complainants may be chilled
in reporting sex discrimination. For example, Sec. 106.8(d) requires a
recipient to ensure that certain persons receive training related to
their duties under Title IX and Sec. 106.44(g) requires a recipient to
offer and coordinate supportive measures, as appropriate, both of which
will support complainants in reporting sex discrimination. The final
regulations also ensure that a recipient fulfills its obligation to
address sex discrimination in its education program or activity by
requiring its Title IX Coordinator to take other prompt and effective
steps to address sex discrimination under Sec. 106.44(f)(1)(vii).
Changes: None.
10. Section 106.45 Grievance Procedures for the Prompt and Equitable
Resolution of Complaints of Sex Discrimination
Comments: Some commenters expressed general support for proposed
Sec. 106.45 because it would establish a baseline for a recipient
responding to sex discrimination complaints by setting clear guidelines
for prompt and equitable grievance procedures, and ensure transparent
and reliable outcomes for students, employees, or others participating
in an education program or activity. One commenter appreciated that
Sec. 106.45 would be less prescriptive and resource-intensive than,
but as effective as, current regulations. Other commenters supported
Sec. 106.45 because it requires consistent grievance procedures for
all forms of sex discrimination, rather than just sex-based harassment.
Other commenters raised general concerns about proposed Sec.
106.45. For example, one commenter expressed concern that a
postsecondary institution could accidentally violate the Clery Act if
it only complied with Sec. 106.45 with regard to an employee-to-
employee complaint.
Additionally, some commenters suggested that elementary schools and
secondary schools should be required to publish their proposed
grievance procedures and hold public hearings to receive input from
parents and community members before the recipient adopts and
implements grievance procedures consistent with the final regulations.
Discussion: The Department agrees that Sec. 106.45 establishes a
baseline for a recipient to respond to sex discrimination complaints by
setting clear guidelines for prompt and equitable grievance procedures
and acknowledges the comments in support.
Regarding concerns that a postsecondary institution may violate the
Clery Act by implementing grievance procedures consistent with Sec.
106.45, the commenter did not articulate, and the Department does not
see, any reason why a postsecondary institution cannot comply with both
its obligations under Sec. 106.45 and the Clery Act as applied to
employee-to-employee complaints--particularly in light of a
postsecondary institution's discretion under Sec. 106.45(j) to adopt
additional provisions in its grievance procedures that apply equally to
the parties. The Department notes that a postsecondary institution's
obligation to implement grievance procedures to resolve employee-to-
employee sex discrimination complaints under Sec. 106.45 is distinct
from its obligation to maintain procedures for institutional
disciplinary action in cases of alleged dating violence, domestic
violence, sexual assault, or stalking under the Clery Act. A recipient
must ensure that it complies with its separate obligations under the
Clery Act. Nothing in these final regulations obviates those
obligations.
Regarding the commenters' suggestion that the final regulations
require an elementary school or secondary school to receive public
input before adopting grievance procedures consistent with Sec.
106.45, the Department notes that State and local law may govern the
procedures a school district must follow to revise its policies. The
commenter did not identify, and the Department is not aware of, how the
failure to solicit public input on proposed grievance procedures
contravenes a recipient's ability to prevent and address sex
discrimination in its education program or activity. Accordingly,
requiring such action is beyond the scope of this rulemaking--as long
as the adopted grievance procedures are consistent with the final
regulations. However, the Department notes that nothing in these
regulations prohibits a recipient from soliciting public input from
parents and other stakeholders to create and adopt grievance procedures
that are consistent with Sec. 106.45, and if applicable Sec. 106.46.
Moreover, a recipient must comply with the requirements of Sec.
106.8(b)(2) by adopting, publishing, and implementing grievance
procedures that comply with these final regulations. For additional
information about the requirement to adopt a nondiscrimination policy
and written grievance procedures, see the discussion of Sec. 106.8(b).
Changes: None.
11. 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
Comments: Some commenters supported proposed Sec. 106.46 because
it would provide additional flexibility to postsecondary institutions.
One commenter stated that Sec. 106.46 would return grievance
procedures for sex-based harassment at postsecondary institutions to a
more survivor-centered and trauma-informed process that is appropriate
for the educational setting, specifically by continuing to require
written notice of allegations under Sec. 106.46(c), requiring
postsecondary institutions to provide parties the same opportunity, if
any, to have persons other than their advisor present under Sec.
106.46(e)(3), granting a recipient discretion to determine whether to
allow expert witnesses under Sec. 106.46(e)(4) or limit their use, and
making live hearings and cross-examination by a party's advisor
discretionary under Sec. 106.46(f) and (g). Another group of
commenters indicated that Sec. 106.46 would reinforce Title IX's
nondiscrimination mandate, ensure a fair process for all parties, and
align with civil rights law and Title IX's intent by making live
hearings optional; introducing flexibility into the process
[[Page 33649]]
of assessing credibility; removing the requirement that advisors
conduct cross-examination; excluding certain sensitive or harassing
evidence from grievance procedures; no longer mandating dismissal of
complaints; and providing guidance regarding whether Title IX grievance
procedures apply when the individuals involved are both students and
employees.
In contrast, other commenters raised general concerns about
proposed Sec. 106.46. For instance, one commenter urged the Department
to remove Sec. 106.46 and apply Sec. 106.45 to any sex discrimination
complaint, to provide postsecondary institutions flexibility. Some
commenters asserted that the Department's justification for applying
Sec. 106.46 to employee-to-student sex-based harassment complaints
only applied when students are respondents, and that the Department
therefore did not adequately justify applying proposed Sec. 106.46 to
a complaint that involves an employee respondent.
Another commenter, who believed that Sec. 106.46 applied only to
student-to-student complaints, recommended instead that the procedures
outlined in Sec. 106.46 apply to all sex-based harassment. The
commenter also interpreted Sec. 106.46 as excluding an applicant or
third party from accessing a recipient's grievance procedures. One
commenter went further and recommended that Sec. 106.46 apply to any
sex discrimination complaint in a postsecondary institution to provide
a consistent and more robust level of due process.
Discussion: The Department appreciates commenters' support of Sec.
106.46 and agrees that these provisions will afford protections that
are appropriate to the age, maturity, independence, needs, and context
of students at postsecondary institutions. The Department also
appreciates commenters' concerns, including their preferences for a
single set of grievance procedures that would apply to all parties and
all types of sex discrimination, or their preferences for procedures
that include more or less specificity. After fully considering the
public comments on its proposed grievance procedures' requirements, the
Department maintains that the final regulations best effectuate the
requirements of Title IX, for reasons explained in the discussion of
the specific provisions of Sec. Sec. 106.45 and 106.46.
Regarding concerns about whether Sec. 106.46 would only apply to
student-to-student sex-based harassment complaints or complaints in
which a non-student or non-employee is a respondent, the Department
appreciates the opportunity to clarify that Sec. 106.46 applies to any
sex-based harassment complaint in which a postsecondary student is
either a complainant or a respondent, including complaints in which the
other party is an employee, another student, or an individual who is
neither a student nor an employee but who was participating or
attempting to participate in the recipient's education program or
activity at the time of the alleged sex discrimination. Specifically,
Sec. 106.46(a) incorporates Sec. 106.45(a)(2)(iv)(B), which allows a
person who is not a student or employee but who was participating or
attempting to participate in the recipient's education program or
activity at the time of the alleged sex discrimination to make a
complaint to initiate grievance procedures, and Sec. 106.45(d)(1)(ii),
which allows a recipient to dismiss a complaint when the respondent is
not participating in the recipient's education program or activity and
is not employed by the recipient. Because the final regulations allow a
non-student or non-employee complainant or respondent to access
grievance procedures in certain circumstances, the Department declines
the commenter's suggestions to further modify Sec. 106.46.
The Department disagrees with the assertion that applying Sec.
106.46 to employee-to-student sex-based harassment complaints does not
adequately accommodate the needs of student complainants. As the
Department explained in the July 2022 NPRM, the additional requirements
in Sec. 106.46 are justified in recognition that postsecondary
students are often younger, may be still learning to self-advocate, and
would not be entitled to have a parent, guardian, or other authorized
legal representative present at meetings or proceedings, unlike
students in elementary schools and secondary schools. 87 FR 41462.
Thus, the additional requirements of Sec. 106.46 are particularly
beneficial for a postsecondary student complainant in a complaint
involving an employee respondent because an employee may be afforded
additional rights or protections that a student complainant would
otherwise lack absent the requirements for grievance procedures under
Sec. 106.46. For example, a recipient may be required to afford an
employee certain procedural protections consistent with State
employment laws, or a collective bargaining, tenured faculty, or other
contractual agreement. Accordingly, Sec. 106.46 affords postsecondary
students with appropriate procedural protections, such as the
opportunity to be accompanied by an advisor under Sec. 106.46(e)(2),
an equal opportunity to access relevant and not otherwise impermissible
evidence under Sec. 106.46(e)(6), and the opportunity to appeal a
dismissal or determination under Sec. 106.46(i). Further, even in
circumstances in which an at-will employee respondent is not entitled
to additional procedural requirements, the additional requirements of
Sec. 106.46 are necessary to address power differentials between a
student complainant and employee respondent, as well as to ensure
transparent and reliable outcomes in sex-based harassment complaints
that involve a postsecondary student.
Similarly, because sex-based harassment complaints subject to the
provisions of Sec. 106.46 could, and often would, involve a student
respondent who faces a potential disciplinary sanction as an outcome of
the grievance procedures, the potential for a disciplinary sanction of
a student respondent necessitates affording additional procedural
requirements to ensure an equitable outcome.
The Department acknowledges the concerns raised by commenters that
due process requires a recipient to implement grievance procedures
consistent with Sec. 106.46 for all sex discrimination complaints but
maintains that the structure of these final regulations strikes an
appropriate balance to ensure protections while maintaining appropriate
flexibility at different levels of education. The additional
requirements of Sec. 106.46 are not necessary to ensure accuracy in
grievance procedures outside the context of sex-based harassment
complaints involving a student at the postsecondary level and may
impair a recipient's ability to resolve sex discrimination complaints
in a prompt and equitable manner, which many commenters stressed is a
critical need for elementary school and secondary school recipients.
The Department emphasizes that Title IX's regulations have required
promptness in grievance procedures since 1975 (see 34 CFR 106.8(c); 40
FR 24139) and avoiding unnecessary delay in the resolution of sex
discrimination complaints serves Title IX's nondiscrimination mandate.
Additionally, as stated in the July 2022 NPRM and reiterated here,
the Department views the additional provisions of Sec. 106.46 as
necessary to address postsecondary sex-based harassment complaints
involving a student, which involve allegations of conduct that is
highly personal and often of a different nature than other
[[Page 33650]]
types of alleged sex discrimination. 87 FR 41462. Sex-based harassment
complaints may require greater participation by a complainant and
respondent in grievance procedures than other complaints of sex
discrimination. In contrast, other sex discrimination complaints may
not involve two parties in a contested factual dispute in which
credibility determinations often play a critical role. For example, in
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 require analysis of available
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
will require a close analysis of grading rubrics, opportunities
offered, and other evidence, if any, of sex discrimination. Id.
Contrary to the commenter's assertion, grievance procedures consistent
with Sec. 106.45 include basic requirements to ensure transparency and
reliability in outcomes. See discussion of Employees--General Support
and Opposition below (enumerating provisions in the final regulations
that ensure a fair process under Title IX).
Changes: None.
D. Grievance Procedures for the Prompt and Equitable Resolution of
Complaints of Sex Discrimination (Section 106.45)
1. Section 106.45(a)(1) and Section 106.46(a)
General Support and Opposition
Comments: One commenter expressed general support for proposed
Sec. Sec. 106.45(a)(1) and 106.46(a), requiring grievance procedures
to be in writing. Some commenters supported informing a recipient of
its obligations under Title IX, including by clearly explaining
required grievance procedures. Other commenters generally believed the
grievance procedure requirements in proposed Sec. 106.45 would be
detrimental to those recipients they would govern. Some commenters
generally opposed aspects of the grievance procedure requirements in
the proposed regulations, stating they were inconsistent with various
cases without specifying the nature of the inconsistency.
Discussion: The Department acknowledges commenters' support for the
requirements in Sec. Sec. 106.45(a)(1) and 106.46(a) that the
grievance procedures must be in writing and agrees that it is important
to inform a recipient of its obligations under Title IX, including by
clearly explaining required grievance procedures.
The Department disagrees with commenters' view that the grievance
procedure requirements in Sec. 106.45 would be detrimental to those
recipients they would govern and notes that the commenters did not
specifically state how the grievance procedure requirements would
negatively impact recipients. As the Department explained in the July
2022 NPRM, the requirement for a recipient to adopt grievance
procedures dates back to 1975 and has remained constant in the
Department's Title IX regulations, including under the 2020 amendments.
See 87 FR 41456. The final regulations take into account both this
longstanding requirement, the concerns expressed by stakeholders
regarding the grievance process under the 2020 amendments, and the
comments received in response to the July 2022 NPRM. The grievance
procedure requirements in the final regulations provide 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 a recipient's grievance procedures provide for the prompt
and equitable resolution of sex discrimination complaints in its
particular setting. As stated in the July 2022 NPRM, the Department
maintains that all parties and recipients require clear guidance for
grievance procedures that lead to fair and reliable outcomes, which the
final regulations provide in Sec. Sec. 106.45 and 106.46. See 87 FR
41461.
The Department disagrees with commenters who asserted that the
grievance procedure requirements set forth in the regulations are
inconsistent with case law. The Department has carefully examined
relevant case law and has determined that the procedures outlined in
Sec. Sec. 106.45 and 106.46 are consistent with that case law. The
approach taken in these final regulations on these issues is consistent
with all applicable authorities, within the Department's discretion,
and supported by the reasons given in the sections of the preamble
discussing these issues. See, e.g., the sections on conflicts of
interest and bias in Sec. 106.45(b)(2); notice of allegations in Sec.
106.45(c) and written notice of allegations in Sec. 106.46(c);
complaint investigation in Sec. Sec. 106.45(f) and 106.46(e);
evaluating allegations and assessing credibility in Sec. Sec.
106.45(g) and 106.46(f); live hearings in Sec. 106.46(g); and standard
of proof in Sec. 106.45(h)(1).
Changes: The Department has made minor revisions to the order of
the words ``prompt and equitable'' and added ``resolution of'' in
Sec. Sec. 106.46(a)(1) and 106.46(a) for clarity. Any other revisions
to other provisions within Sec. Sec. 106.45 and 106.46 are discussed
in the preamble sections related to those provisions.
Agency Authority and Consistency With Case Law
Comments: Some commenters asserted that various provisions within
the proposed grievance procedure requirements in Sec. Sec. 106.45 and
106.46 would exceed the Department's authority or be inconsistent with
Title IX and established case law under Title IX, the U.S.
Constitution, contract law, and State law.
Discussion: The Department disagrees that any provisions within
Sec. Sec. 106.45 and 106.46 exceed the agency's authority or are
inconsistent with Title IX and case law under Title IX, the U.S.
Constitution, contract law, or State law. In adopting Sec. Sec. 106.45
and 106.46, the Department is acting within the scope of its
congressionally delegated authority under 20 U.S.C. 1682, which directs
the Department to issue regulations to effectuate the purposes of Title
IX. The Supreme Court has recognized the Department's ``authority [at
20 U.S.C. 1682] to promulgate and enforce requirements that effectuate
the statute's nondiscrimination mandate,'' including requiring that a
recipient adopt and publish grievance procedures for resolving
complaints of sex discrimination. Gebser, 524 U.S. at 292.
Further, the Department interprets Title IX and the final
regulations consistent with the U.S. Constitution. As the Department
noted in the July 2022 NPRM, Sec. 106.6(d), to which the Department
did not propose any changes, states that nothing in the Title IX
regulations ``requires a recipient to . . . [r]estrict any rights . . .
guaranteed by the U.S. Constitution.'' See also 87 FR 41415.
In addition, nothing in Sec. Sec. 106.45 or 106.46 prevents a
recipient from honoring contractual obligations to the extent that they
do not conflict with Title IX or the final regulations. While State
laws may impose different requirements than these final regulations, in
most circumstances compliance with both State law and the final
regulations is attainable. When a State has acted on its own authority
to require a recipient to adopt grievance procedures, nothing in the
final regulations prevents a recipient from adopting and publishing
grievance procedures that comply with Sec. Sec. 106.45
[[Page 33651]]
and 106.46 and align with its State's requirements. A recipient may
continue to comply with State law to the extent that it does not
conflict with the requirements in these final regulations. In the event
of an actual conflict between State or local law and the provisions in
Sec. Sec. 106.45 and 106.46, the latter would have preemptive effect
over conflicting State or local law. The Supreme Court has held that
``[p]re-emption may result not only from action taken by Congress
itself; a federal agency acting within the scope of its congressionally
delegated authority may pre-empt state regulation.'' La. Pub. Serv.
Comm'n v. FCC, 476 U.S. 355, 369 (1986). In addition, Federal courts
have generally held that when a State law purportedly conflicts with
Federal statutes enacted under the Spending Clause, such claims should
be analyzed under traditional preemption doctrine. See, e.g., Planned
Parenthood of Hous., 403 F.3d at 330; O'Brien, 162 F.3d at 42-43. For
further explanation of preemption in the final regulations, see the
discussion of Sec. 106.6(b).
Changes: None.
Removal of Language From the 2020 Amendments That Treatment of a
Complainant or Respondent May Be Sex Discrimination
Comments: Some commenters objected to the removal of language in
Sec. 106.45(a) of the 2020 amendments stating 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'' because, in their view, it would remove
protections for respondents. Another commenter questioned the
Department's view in the July 2022 NPRM that the statement was
redundant. One commenter asserted that case law shows that
postsecondary institutions have deficient processes that lead to
inappropriate discipline of boys and men.
Discussion: The Department recognizes that some commenters would
prefer as a policy matter that the Department retain the language from
the 2020 amendments stating that ``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.'' The
Department also acknowledges that in certain cases courts have
determined that a postsecondary institution's application of its
grievance procedures violated a party's rights under Title IX or raised
constitutional concerns. The Department notes that a formal complaint
is not required under the final regulations and maintains that it is
not necessary to include language in the grievance procedure
requirements stating that treatment of a complainant or a respondent in
response to a complaint of sex discrimination may constitute
discrimination on the basis of sex under Title IX, because the Title IX
regulations already address this point in Sec. 106.31(a)(1) and
(b)(4). As explained above and in the July 2022 NPRM, see 87 FR 41463,
these provisions require that a recipient carry out its grievance
procedures in a nondiscriminatory manner and prohibit a recipient from
discriminating against any party based on sex. Anyone who believes that
a recipient's treatment of a complainant or respondent constitutes sex
discrimination may file a complaint with OCR, which OCR would evaluate
and, if appropriate, investigate and resolve consistent with these
regulations' requirement that a recipient carry out its grievance
procedures in a nondiscriminatory manner.
Changes: None.
Recipient Is Not a Respondent
Comments: Some commenters said that grievance procedures should
only apply to a sex discrimination complaint for which there is a
complainant and a respondent. One commenter stated that the language in
proposed Sec. 106.45(a)(1) that a recipient is not considered a
respondent when a sex discrimination complaint challenges the
recipient's policy or practice could be read to suggest that
respondents' only rights under Title IX are those specified in
Sec. Sec. 106.45 and 106.46 and that individuals who are named as
respondents do not have other substantive Title IX rights, including
the right to be free from sex discrimination. Another commenter was
concerned that the language could be interpreted to mean that a
recipient is not required to comply with the grievance procedure
requirements when a complaint accuses the recipient of engaging in a
policy or practice of sex discrimination and suggested adding ``as it
relates to the respondent's rights in these regulations'' to the end of
the text in proposed Sec. 106.45(a)(1) to dispel that purported
confusion.
Some commenters asked the Department to provide additional
clarification for the language regarding a recipient not being a
respondent. One commenter asked the Department to clarify that a
complaint against an individual respondent based on actions the
respondent took in accordance with a recipient's policy or practice
should be handled the same way a recipient would handle a complaint
about the recipient's policy or practice even if the complainant names
an individual respondent.
Discussion: The Department has determined that grievance procedures
should not be limited to sex discrimination complaints in which there
is a complainant and respondent. Since 1975, the Department's Title IX
regulations have required recipients to adopt and publish grievance
procedures for complaints of sex discrimination and have not limited
this requirement to only those that involve a complainant and a
respondent. As explained in the July 2022 NPRM, the Department
recognizes that not all complaints of sex discrimination involve active
participation by complainants and respondents, including those alleging
that the recipient's own policies and procedures discriminate based on
sex. See 87 FR 41464. As a result, the Department recognizes that some
provisions in Sec. 106.45 will not apply to certain complaints of sex
discrimination. Id. But the Department clarifies that recipients must
fully implement and follow those parts of Sec. 106.45 that do apply to
such complaints, including when responding to a complaint alleging that
the recipient's policy or practice discriminates on the basis of sex.
The Department notes that the language in Sec. 106.45(a)(1)
regarding a recipient not being considered a respondent is to clarify
that when a complaint is against a recipient and not an individual
respondent, the recipient would not be entitled to certain procedural
rights and steps afforded to individual respondents. The Department
agrees that respondents have the same rights as other students to be
protected from sex discrimination in a recipient's education program or
activity and clarifies that the language in Sec. 106.45(a)(1) does not
suggest otherwise.
The Department's view is that it is not necessary to add language
to Sec. 106.45(a)(1) regarding complaints about a recipient's policy
or practice, but the Department appreciates the opportunity to clarify
Sec. 106.45(a)(1) in response to commenters' concerns and suggestions.
As explained in the July 2022 NPRM, the grievance procedure
requirements in Sec. 106.45 related to a respondent apply only to sex
discrimination complaints alleging that a person violated a recipient's
prohibition on sex discrimination and do not apply when a complaint
alleges that a recipient's policy or practice discriminates based on
sex. See 87 FR 41464.
[[Page 33652]]
In response to a commenter's question regarding a complaint
alleging that an individual engaged in sex discrimination based on
actions the individual took in accordance with the recipient's policy
or practice, the Department notes that the recipient must treat the
individual as a respondent and comply with the requirements in Sec.
106.45 that apply to respondents. This is because such complaints may
involve factual questions regarding whether the individual was, in
fact, following the recipient's policy or practice, what actions the
individual took, and whether the individual could be subject to
disciplinary sanctions depending on these facts. To the extent an
individual was following the recipient's policy or practice, a
recipient has flexibility to determine whether the original complaint
must be amended to be a complaint against the recipient or whether this
determination can be made based on the original complaint against the
individual.
Changes: None.
2. Section 106.45(a)(2) Who Can Make Complaint
General Support
Comments: Commenters generally supported Sec. 106.45(a)(2) and
stated that its additional information on reporting sex discrimination,
including who can make a complaint, was needed. A group of commenters
praised the proposed regulations for returning flexibility to Title IX
Coordinators to decide whether a complaint should be initiated and
added that the 2020 amendments' restrictions on who may file a
complaint were inflexible, too prescriptive, and created barriers to
investigating sex discrimination. One commenter noted that the
mandatory dismissal provision of the 2020 amendments left a number of
individuals who were subject to sex-based harassment without
protections.
Some commenters expressed particular support for the requirement
that a recipient address complaints from individuals who are not
current students or employees. For example, one commenter stated that
proposed Sec. 106.45(a)(2) would empower survivors of sexual violence
to make a complaint even if they had left the recipient's education
program or activity, and that allowing complaints of sex discrimination
to be made by a person who is not a student or employee as long as they
were participating or attempting to participate in the recipient's
education program or activity at the time of the alleged sex
discrimination would help ensure that a recipient's education program
or activity is free from sex discrimination and would align with the
statutory language of Title IX, which says that ``no person'' shall be
discriminated against on the basis of sex. See 20 U.S.C. 1681.
Discussion: The Department acknowledges commenters' support for
Sec. 106.45(a)(2) and agrees that the final regulations provide needed
clarity. The Department also appreciates commenters' concerns about the
impact of the 2020 amendments on the ability of a recipient to
effectively address sex discrimination in its education program or
activity. The Department shares commenters' goals of ensuring accurate
reporting and safety in a recipient's educational community and
removing barriers to reporting while also protecting complainant
confidentiality and autonomy.
Changes: None.
``Third-Party'' Language
Comments: Some commenters requested that the Department clarify
what it meant by ``third party'' in proposed Sec. 106.45(a)(2)(iv) and
who can initiate a Title IX complaint, observing that the definition of
``complainant'' in proposed Sec. 106.2 did not use the term ``third
party.'' One commenter noted that proposed Sec. 106.45(a)(2)(i) stated
that a complaint may be filed by a complainant, but the definition of
``complainant'' in proposed Sec. 106.2 did not include any of the
qualifications of proposed Sec. 106.45(a)(2)(iv). Commenters further
expressed confusion based on their observations that proposed Sec.
106.45(a)(2) stated that any student or employee, or any third party
participating or attempting to participate in the recipient's education
program or activity at the time of the alleged sex discrimination, may
make a complaint, while the July 2022 NPRM preamble used the term
``third party'' to describe a person who does not have a legal right to
act on behalf of a student, see 87 FR 41519, 41520 (referencing a third
party who does not have such a legal right), and in another part of the
preamble the Department gave examples of third parties and used the
phrase ``such as a friend, parent, or witness to sexual harassment,''
id. at 41440 (referencing the 2020 amendments).
One commenter asserted that the language in proposed Sec.
106.45(a)(2)(iv) was not clear because of the placement of a semicolon
after ``any student or employee.'' The commenter was confused about
whether the Department intends the ``participating or attempting to
participate'' requirement to apply to any student or employee, or only
to any third party. Overall, the commenter asked the Department to
clarify: (1) when complaints by a non-student, non-employee third party
would initiate Title IX grievance procedures, including whether these
complaints are limited to sex discrimination that is not sex-based
harassment and in which the third party is participating or attempting
to participate in the recipient's education program or activity at the
time of the alleged discrimination; and (2) when a person's student or
employee status would initiate Title IX grievance procedures.
Commenters also expressed confusion about whether someone who
merely observes or becomes aware of potential discrimination can make a
complaint. One commenter expressed concern that the way proposed Sec.
106.45(a)(2)(iv) was drafted, it was not clear whether a person who has
a right to make a complaint on behalf of a complainant (paragraph
(a)(2)(ii) of the proposed regulations) or a Title IX Coordinator
(paragraph (a)(2)(iii) of the proposed regulations) could make a
complaint of sex discrimination other than sex-based harassment.
Discussion: Based on these comments and to avoid confusion, the
Department has revised Sec. 106.45(a)(2)(iv) in these final
regulations by removing the term ``any third party.'' In addition, it
has created two new paragraphs: Sec. 106.45(a)(2)(iv)(A), which now
reads ``Any student or employee''; and Sec. 106.45(a)(2)(iv)(B), which
now reads ``Any person other than a student or employee who was
participating or attempting to participate in the recipient's education
program or activity at the time of the alleged sex discrimination.'' As
these revisions make clear, the qualifier ``who was participating or
attempting to participate in the recipient's education program or
activity at the time of the alleged sex discrimination'' applies only
to a person who is neither a student nor an employee of the recipient;
such a limitation is not necessary for a student or employee because
they already have an affiliation with the recipient.
Upon further reflection, the Department has also revised Sec.
106.45(a)(2)(ii) by removing ``a person who has a right to make a
complaint on behalf of a complainant under Sec. 106.6(g)'' and
replacing it with ``a parent, guardian, or other authorized legal
representative with the legal right to act on behalf of a
complainant.'' This change was made to avoid confusion because Sec.
106.6(g) does not create any legal rights, but instead merely provides
that nothing in the regulations infringes on the right of a parent,
guardian, or
[[Page 33653]]
legal representative to make a complaint or take other action on behalf
of a complainant, respondent, or other person.
To answer commenters' questions, a person who observes or becomes
aware of potential discrimination may submit a complaint only for
allegations of non-harassment sex discrimination, and the person may
only do so if they are one of the following: a student or employee, or
any person other than a student or employee who is participating or
attempting to participate in the recipient's education program or
activity at the time of the alleged sex discrimination. See Sec.
106.45(a)(2)(iv). Under the final regulations, a sex-based harassment
complaint may only be made by a complainant; a parent, guardian, or
other authorized legal representative with the legal right to act on
behalf of a complainant; or, in limited circumstances, the Title IX
Coordinator. See Sec. Sec. 106.45(a)(2)(i)-(iii), 106.44(f)(1)(v).
These persons may also make complaints of sex discrimination. See Sec.
106.45(a)(2)(iv). The Department has limited the class of persons who
may make complaints of sex-based harassment because such complaints may
involve deeply personal aspects of the complainant's life, and because
permitting complainants (or those with the legal authority to act on
their behalf) to choose whether to ask the recipient to initiate
grievance procedures, except in the very limited circumstances in which
a Title IX Coordinator may initiate the recipient's grievance
procedures, best protects complainant autonomy interests while
effectuating Title IX. See, e.g., 87 FR 41408, 41465; Sec.
106.44(f)(1)(v)(B). Under the definition of ``complainant,'' an
individual may only be a complainant if they themselves are alleged to
have been subjected to conduct that could constitute sex discrimination
under Title IX. See also discussion of Sec. 106.2 (Definition of
``Complainant'').
In addition, the final regulations at Sec. 106.2 include minor
changes to the definition of ``complaint'' and the Department updated
the introductory language in Sec. 106.45(a)(2) to match the new
definition, changing ``initiate its grievance procedures'' to
``investigate and make a determination about alleged discrimination
under Title IX and this part.'' See section on the definition of
``complainant'' in Sec. 106.2.
Changes: The Department has revised Sec. 106.45(a)(2)(iv), to
clarify that for complaints of sex discrimination other than sex-based
harassment, the individuals listed in Sec. 106.45(a)(2)(i)-(iii) can
make a complaint, in addition to the individuals listed in paragraph
(a)(2)(iv). In Sec. 106.45(a)(2)(iv)(B), the Department has replaced
the words ``third party'' with ``[a]ny person other than a student or
employee who was'' and divided that paragraph into separate paragraphs
(iv)(A) and (B). In Sec. 106.45(a)(2)(ii), the Department has
clarified that a parent, guardian, or other authorized legal
representative with the legal right to act on behalf of a complainant
may file a complaint of sex discrimination, including sex-based
harassment, and removed the reference to Sec. 106.6(g). The Department
also has revised the introductory language in Sec. 106.45(a)(2) to
align it with the changes to the definition of ``complaint'' in final
Sec. 106.2. See section on the definition of ``complainant'' in Sec.
106.2. The Department also has made a minor technical edit by replacing
``when the alleged sex discrimination occurred'' with ``at the time of
the alleged sex discrimination'' in final Sec. 106.45(a)(2)(iv)(B).
Complainant Autonomy
Comments: Some commenters supported the Department's continued
exclusion of complaints by non-aggrieved persons for allegations of
sex-based harassment, which the commenters acknowledged helps to
preserve complainant autonomy in matters of sex-based harassment, but
opposed the Department's proposal to allow complaints of other types of
sex discrimination to be made by any student, employee, or other person
participating or attempting to participate in the recipient's education
program or activity at the time of the alleged sex discrimination. Some
commenters misunderstood proposed Sec. 106.45(a)(2) and objected to
allowing a non-aggrieved person to make a complaint of sex-based
harassment even if the aggrieved person chooses not to. Some commenters
expressed concern that sex-based harassment complaints could be made by
bystanders who are not directly involved in an incident.
One commenter asserted that allowing complaints of sex
discrimination other than sex-based harassment to be made by a non-
aggrieved person could take autonomy away from the aggrieved person and
give control to a person who has less knowledge of the alleged
discrimination than the aggrieved person. Another commenter noted that
even sex discrimination that does not constitute harassment still may
be personal and sensitive for the aggrieved person.
Some commenters acknowledged that, under proposed Sec.
106.45(a)(2)(iii), in limited circumstances a Title IX Coordinator may
decide to initiate grievance procedures without the aggrieved person's
consent but argued that such a decision should not be granted to third
parties. One commenter asserted that it would be arbitrary and
capricious for the Department to allow someone without training and
possibly no affiliation with the recipient to make a complaint and
trigger grievance procedures on behalf of an aggrieved person.
One commenter asserted that Sec. 106.45(a)(2) defies the legal
principle that a person with a personal stake in the outcome of the
dispute is best situated to seek a remedy from a court. The commenter
asserted the provision would give standing to any person who believes
discrimination may have occurred, even if that person did not suffer
any injury as a result of the alleged discrimination. Another commenter
suggested that the Department adopt a ``standing'' requirement for
third-party complaints as part of proposed Sec. 106.45(a)(2)(iv) and
require a third-party complainant to have firsthand knowledge of the
facts that form the basis of the complaint to preserve resources. The
same commenter recommended that the Department revise the language in
proposed Sec. 106.45(a)(2)(iv) to clarify what it means by
``complaints of sex discrimination other than sex-based harassment.''
Discussion: As the Department explained in the July 2022 NPRM, in
drafting Sec. 106.45(a)(2), the Department purposefully imposed
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. 87 FR 41464. Under Sec. 106.45(a)(2)(i)-
(iii), a complaint of sex-based harassment can only be made by a
``complainant,'' defined in Sec. 106.2 as a person alleged to have
been subjected to sex discrimination; by a person who has the legal
right to make a complaint on behalf of a complainant; or by the Title
IX Coordinator. The Department proposed that limitation to give a
complainant autonomy over whether to request initiation of a
recipient's grievance procedures (except in limited circumstances in
which a Title IX Coordinator would be obligated to initiate the
grievance procedures if the complainant chooses not to, see Sec.
106.44(f)(1)(v)), recognizing that allegations of sex-based harassment
may involve deeply personal and sensitive issues. Under Sec.
106.45(a)(2)(iv), however, a complaint of sex discrimination that is
not sex-based harassment can be made by any of the people listed in
paragraphs (a)(2)(i)-(iii),
[[Page 33654]]
as well as by a non-aggrieved student, employee, or person other than a
student or employee who was participating or attempting to participate
in the recipient's education program or activity at the time of the
alleged sex discrimination. Allegations of sex discrimination that are
not sex-based harassment often implicate a recipient's policies or
practices, are more likely to represent community-wide experiences, and
are made against a recipient instead of against another person, such as
a peer. Expanding reporting options to include those who have not been
subject to sex discrimination will help recipients root out prohibited
discrimination, protect their communities from sex-based harms, and
ensure that all community members impacted by sex discrimination can
find support. While the interest in protecting communities from sex-
based harassment is equally important, the Department finds that the
heightened need for complainant autonomy in cases of sex-based
harassment justifies limiting complaints of sex-based harassment to
those who have been aggrieved.
The Department disagrees with a commenter's characterization that
the proposed regulations would permit bystanders who are not directly
involved in an incident to make complaints of sex-based harassment.
Under the final regulations, a person who witnesses an incident that
creates a hostile environment for them may make a complaint on their
own behalf. A person with no connection to the educational institution
and who thus has not experienced a hostile educational environment
would not be able to make a complaint of sex-based harassment.
Harassment law has consistently recognized that individuals may be
subject to a hostile environment, even if they are not the target of
the harassment; thus, contrary to the commenter's characterization,
these ``bystanders'' may in fact be involved in the conduct in question
in that they, too, may experience a hostile environment. See, e.g.,
Jennings, 482 F.3d at 695 (``A coach's sexually charged comments in a
team setting, even if not directed specifically to the plaintiff, are
relevant to determining whether the plaintiff was subjected to sex-
based harassment.''); id. at 703 (Gregory, J., concurring) (``I agree
with the majority that Anson Dorrance's sexually explicit,
inappropriate, and harassing comments directed to other players on the
team, but overheard by Jennings, are relevant to determining whether
Jennings was subjected to a hostile environment.''); Broderick v.
Ruder, 685 F. Supp. 1269, 1277-78 (D.D.C. 1988) (citing Vinson v.
Taylor, 753 F.3d 141, 146 (D.C. Cir. 1985)). Individuals who do not fit
these categories, whether an uninvolved bystander or otherwise, cannot
make a Title IX complaint.
For the reasons discussed above, the Department notes again here
that it edited Sec. 106.45(a)(2)(iv) based on comments it received and
to improve clarity on who may submit which types of complaints. Section
106.45(a)(2) does not permit anyone who does not have one of the
specified relationships with the recipient to make a complaint of sex
discrimination, and it does not allow a person who was not subject to
alleged sex-based harassment to make a complaint of sex-based
harassment, unless they are the Title IX Coordinator or are authorized
to act on a complainant's behalf per Sec. 106.45(a)(2)(ii). This
framework will encourage reporting from persons in the recipient's
educational community, which in turn will help the recipient learn
about possible sex discrimination in its education program or activity
and improve its ability to comply with Title IX. Far from being
arbitrary and capricious, this approach was carefully considered by the
Department, was explained in the July 2022 NPRM, see 87 FR 41465, and
received support from commenters.
The Department declines to add a separate standing requirement for
Title IX complaints because Title IX complaints are resolved by an
educational entity, not a court of law. As explained above, all of the
parties allowed to make a sex discrimination complaint have some
relationship or connection to the recipient's education program or
activity, mitigating the risk of a speculative complaint or that the
person who made the complaint lacks a stake in the complaint's outcome.
The Department also notes that Title IX's statutory language says ``no
person'' shall be subject to sex discrimination in a recipient's
education program or activity, see 20 U.S.C. 1681, which is broad and
meant to protect everyone in a recipient's education community. Indeed,
many commenters praised Sec. 106.45(a)(2) because it will help
recipients protect their education communities from harm and help
ensure that all community members impacted by discrimination can find
support.
Finally, the language ``complaints of sex discrimination other than
sex-based harassment'' in Sec. 106.45(a)(2)(iv) includes all
complaints of sex discrimination that do not involve sex-based
harassment, including, for example, allegations of retaliation under
Sec. 106.71, allegations that a recipient failed to make reasonable
modifications under Sec. 106.40(b)(3)(ii), or allegations that a
recipient's policy or procedures discriminate on the basis of sex. As
explained in more detail in the discussion of Sec. 106.10, the final
regulations clarify that sex discrimination includes, but is not
limited to, discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity.
Changes: None.
Title IX Coordinator
Comments: Some commenters objected to giving the Title IX
Coordinator authority to initiate grievance procedures even without
receiving a complaint. One commenter was concerned that an aggrieved
person could be stripped of the decision whether to move forward with a
complaint because of a misunderstanding between the aggrieved person
and the Title IX Coordinator. Other commenters argued that if the
aggrieved person declines to participate or denies that the conduct
occurred, the recipient should not proceed with an investigation unless
there is compelling evidence that the misconduct occurred and that an
investigation is necessary to ensure student safety.
One commenter asked whether, if a person alleges they were subject
to sex discrimination but cannot make a complaint because they were not
participating or attempting to participate in a recipient's education
program or activity when the alleged conduct occurred, but the Title IX
Coordinator makes a complaint to investigate the alleged conduct, the
investigation would be subject to the ``resolution process'' in
accordance with the Title IX regulations. In addition, this commenter
requested that the Department clarify that it intends for a complaint
initiated by the Title IX Coordinator under proposed Sec.
106.45(a)(2)(ii) to not be a complaint made on behalf of the Title IX
Coordinator, but rather on behalf of another person, and suggested
adding ``on behalf of a complainant under Sec. 106.6(g)'' (which
recognizes that a parent, guardian, or other authorized legal
representative can act on behalf of a complainant).
Discussion: The Department appreciates the points made by
commenters on proposed Sec. 106.45(a)(2)(iii). The Department
disagrees, however, with commenters'
[[Page 33655]]
characterization of the regulations because the regulations do not give
the Title IX Coordinator broad authority to initiate grievance
procedures even without a complaint. Rather, as explained in more
detail in the discussion of Sec. 106.44(f), per the final regulations
at Sec. 106.44(f)(1)(v), in the absence of a complaint, the Title IX
Coordinator may initiate a complaint only after determining that the
alleged conduct ``presents an imminent and serious threat to the health
or safety of a complainant or other person, or that conduct as alleged
prevents the recipient from ensuring equal access based on sex to its
education program or activity.'' See Sec. 106.44(f)(1)(v)(B). In
making this fact-specific determination, the Title IX Coordinator must
consider, at a minimum, factors now listed in Sec.
106.44(f)(1)(v)(A)(1)-(8). Those factors, which were also discussed in
the preamble to the July 2022 NPRM, include the complainant's request
not to proceed with a complaint investigation; the complainant's
reasonable safety concerns regarding initiation of a complaint; the
risk that additional acts of sex discrimination would occur if the
grievance procedures are not initiated; the severity of the alleged sex
discrimination, which would include but not be limited to
discrimination that, if established, would require the removal of a
respondent from campus or imposition of another disciplinary sanction
to end the discrimination and prevent its recurrence; the age and
relationship of the parties, including whether the respondent is an
employee of the recipient; the scope of the alleged sex discrimination,
including information suggesting a pattern, ongoing sex discrimination,
or conduct alleged to have impacted multiple individuals; the
availability of evidence to assist a decisionmaker in determining
whether sex discrimination occurred; and whether the recipient could
end the alleged sex discrimination and prevent its recurrence without
initiating its grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46. See Sec. 106.44(f)(1)(v)(A)(1)-(8); 87 FR
41445. These factors will help the Title IX Coordinator balance the
complainant's wishes with the risk of future sex discrimination and the
likely effectiveness of making a complaint and proceeding through the
grievance procedures. An aggrieved person declining to participate or
denying that the conduct occurred, as a commenter suggested, may affect
the Title IX Coordinator's analysis of the above factors, such as the
availability of evidence. Because the Title IX Coordinator must
consider the factors in Sec. 106.44(f)(1)(v)(A)(1)-(8) before
initiating a complaint, it is extremely unlikely that such a decision
could be made based on a misunderstanding with the complainant. For
more about the Title IX Coordinator's initiation of a complaint, see
the discussion of Sec. 106.44(f)(1).
A complaint is essentially a request to initiate the recipient's
grievance procedures and prompts an investigation and a determination
whether sex discrimination occurred. Regarding the commenter's question
about what procedures would be required if someone who is not one of
the persons listed in Sec. 106.45(a)(2)(i)-(iv) alleges that they were
subject to sex discrimination and the recipient's Title IX Coordinator
decides to make a complaint, this would only happen under the limited
circumstances allowed in Sec. 106.44(f)(1)(v). The commenter is
correct that a complaint made by the Title IX Coordinator under Sec.
106.45(a)(2) would be made on behalf of neither the Title IX
Coordinator nor another person (including those mentioned in Sec.
106.6(g)). Instead, complaints initiated by the Title IX Coordinator
would be based on the Title IX Coordinator's determination, in
accordance with Sec. 106.44(f)(1)(v), that the alleged conduct
presents an imminent and serious threat to the health or safety of a
complainant or other person, or that the alleged conduct prevents the
recipient from ensuring equal access based on sex to its education
program or activity, taking into consideration a variety of factors.
See Sec. 106.44(f)(1)(v). Therefore, the change to the regulatory text
proposed by the commenter to clarify on whose behalf the complaint
would be made is not necessary.
Finally, the Department appreciates the opportunity to clarify that
the final regulations and the preamble sometimes refer to the rights or
obligations of ``the parties'' in connection with grievance procedures.
In the case of a complaint initiated by a recipient's Title IX
Coordinator rather than a complainant, the Department does not intend
for the Title IX Coordinator to ``stand in'' for the complainant and
become one of ``the parties.'' References to ``the parties'' in such
cases should not be read to refer to the Title IX Coordinator as the
complainant. This is consistent with the 2020 amendments, which said
that ``[w]here the Title IX Coordinator signs a formal complaint, the
Title IX Coordinator is not a complainant or otherwise a party under
this part or under Sec. 106.45.'' 34 CFR 106.45(b)(1)(iii).
Changes: The Department has revised final Sec. 106.44(f)(1)(v) to
add a requirement that the Title IX Coordinator may make a complaint of
sex discrimination only in the absence of a complaint or withdrawal of
any or all of the allegations in a complaint, or in the event of a
termination of the informal resolution process, and only if the Title
IX Coordinator determines that the alleged conduct presents an imminent
and serious threat to the health or safety of a complainant or other
person, or that the alleged conduct prevents the recipient from
ensuring equal access based on sex to its education program or
activity. Final Sec. 106.44(f)(1)(v)(A) includes a list of specific
factors the Title IX Coordinator must consider, at a minimum, in making
such a determination. The Department has also revised final Sec.
106.45(a)(2)(iii) by adding the words ``after making the determination
specified in Sec. 106.44(f)(1)(v)'' after the words ``The Title IX
Coordinator.'' This change is not a substantive change from the
proposed regulatory text, but rather makes clear that a Title IX
Coordinator may only make a complaint of sex discrimination in the
limited circumstances specified in Sec. 106.44(f)(1)(v). See 87 FR
41445.
Burden on Recipients
Comments: Some commenters expressed concern that allowing a non-
aggrieved person who was participating or attempting to participate in
the recipient's education program or activity at the time of the
alleged discrimination to make a complaint of sex discrimination other
than sex-based harassment could create the potential for abuse and
allow bad actors to use the procedures to overload recipients with
complaints. Another commenter, a postsecondary institution, asserted
that complaints by non-aggrieved parties may be difficult to
investigate and that there may be little that a recipient can do to
support a complainant who is not their student or employee. One
commenter requested that the Department acknowledge that with respect
to obligations toward a third party, such as supportive measures, a
recipient may be limited by a lack of relationship with that party.
One commenter objected that proposed Sec. 106.45(a)(2) would allow
a complaint to be made by a non-aggrieved person, such as spectators at
a recipient's sports games or visitors on campus tours, and expressed
concern that persons might be pulled into grievance procedures when
they did not perceive the alleged conduct to be discriminatory or were
not aware of the
[[Page 33656]]
reported conduct. The commenter argued that such a broad sweep goes
beyond Congress' intent in passing Title IX, which the commenter
asserted was to ensure that girls and women get equal access to
education programs and activities.
One commenter expressed concern that community colleges are likely
to be affected by the proposed requirement that grievance procedures be
available to a non-aggrieved person participating or attempting to
participate in a recipient's education program or activity, because of
the general openness of community colleges and their mission to serve
their communities in a variety of ways. The commenter suggested that
the regulations require a sex discrimination complaint brought by a
non-aggrieved person to be addressed solely through the requirements of
proposed Sec. 106.44 instead of the grievance procedures of proposed
Sec. 106.45 unless a student respondent or the recipient chooses to
use the grievance procedures.
Discussion: First, to address commenters' misunderstanding--and as
clarified in final Sec. 106.45(a)(2)--it is not correct that under
Sec. 106.45(a)(2) anyone who claims to have knowledge of sex
discrimination can make a complaint that a recipient then would have to
investigate. Rather, under Sec. 106.45(a)(2)(i)-(iii), a complaint
alleging sex-based harassment can only be made by a complainant--
defined in Sec. 106.2 as a person alleged to have been subjected to
the sex discrimination themselves; a parent, guardian, or other
authorized legal representative with the legal right to act on behalf
of a complainant; or the Title IX Coordinator. A complaint of sex
discrimination that is not sex-based harassment, on the other hand,
could be made by any of those persons, see Sec. 106.45(a)(2)(iv), as
well as any student or employee, see Sec. 106.45(a)(2)(iv)(A), or any
person who is not a student or employee but who is participating or
attempting to participate in the recipient's education program or
activity at the time of the alleged sex discrimination. Therefore, a
scenario in which a complaint could be made by a student on behalf of
another student is only possible for complaints of sex discrimination
that are not sex-based harassment. Still, even without a complaint a
recipient has an obligation to a student who is alleged to have
experienced sex discrimination; under Sec. 106.44(f)(1)(v) and (vii)
the Title IX Coordinator must determine whether to initiate a complaint
of sex discrimination or 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.
Second, the Department does not agree with commenters who asserted
that the Department should revise Sec. 106.45(a)(2) because it will
cause recipients to be flooded with complaints of sex discrimination,
some of which may be filed in bad faith. Even if the overall number of
sex discrimination complaints increase somewhat, the Department's goal
is to effectuate Title IX's nondiscrimination mandate, which Sec.
106.45(a)(2) will do. After careful consideration, the Department has
decided that the benefit of allowing a complaint to be made by some
non-aggrieved persons with respect to some kinds of sex discrimination
justifies the relatively low risk that a complaint will be made in bad
faith.
Regarding commenters' concerns that there may be little a recipient
can do to support someone who makes a complaint of sex discrimination
but who is not a student or employee, that may be true in some cases
but is not a reason to prohibit those who are not students or employees
from making a complaint. The Department reiterates that anyone who
makes a complaint must have some relationship with the recipient. The
final regulations also provide that recipients need only offer
supportive measures ``as appropriate'' and ``to restore or preserve
that party's access to the recipient's education program or activity,
including measures that are designed to protect the safety of the
parties or the recipient's educational environment.'' Sec. Sec. 106.2
(definition of ``supportive measures''), 106.44(g). Section 106.44(g)
requires a recipient to fulfill its Title IX obligations in those
instances, recognizing that when not appropriate or necessary to
restore or preserve that party's access, the recipient would not have
an obligation to offer supportive measures.
The Department disagrees with the commenter's contention that
allowing a complaint to be made by a person who was not the target of
the sex discrimination, such as a spectator at a recipient's sports
game or a visitor on a campus tour, goes beyond Congress' intent in
passing Title IX. The plain language of Title IX provides broad
protection in stating that ``no person'' shall be subjected to sex
discrimination in a recipient's education program or activity. 20
U.S.C. 1681. That statutory text does not state or suggest that only
targets of sex discrimination have the ability to file complaints even
when a complaint by a different individual would protect the target
from sex discrimination in a recipient's education program or activity.
The Department has long interpreted Title IX to require a recipient to
take action to address discrimination regardless of who reports it, to
ensure that the recipient's education program or activity is free from
sex discrimination. See, e.g., 2001 Revised Sexual Harassment Guidance,
at 13. In addition, the permissive dismissal rules apply to all
complaints, so the recipient can dismiss a complaint on any of the
bases listed in Sec. 106.45(d)(1)(i)-(iv), including if the recipient
determines that the conduct alleged in the complaint, even if proven,
would not constitute sex discrimination under Title IX.
Finally, the Department appreciates hearing about the challenges a
community college may face due to its mission to serve the community
broadly. The Department disagrees, however, with the suggestion to
revise the regulations so that complaints by non-aggrieved persons are
addressed only through Sec. 106.44 and not Sec. 106.45 unless the
student respondent or the recipient elects to go through the grievance
procedures. As the Department explained in the preamble to the July
2022 NPRM, the grievance procedures required by Sec. 106.45 are
critical to 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.
87 FR 41456. The provisions in Sec. 106.45 ``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.'' 87 FR 41461.
Changes: None.
3. Section 106.45(b)(1) Treat Complainants and Respondents Equitably
General Support and Opposition
Comments: Some commenters supported proposed Sec. 106.45(b)(1)
because it would strike a balance between protecting the rights of a
respondent and allowing a recipient to investigate claims of sex-based
harassment. Other commenters stated that the provision would ensure the
equitable resolution of sex-based harassment complaints by treating
complainants fairly in contrast to the grievance procedure requirements
in the 2020 amendments. One commenter stated that the proposed
regulations
[[Page 33657]]
would correct the impression in the 2020 amendments that, to treat the
parties equitably, a recipient need only offer supportive measures to a
complainant and follow the grievance procedure requirements before
imposing sanctions.
Some commenters opined that the Department should not remove the
requirement that the regulations apply equally to both parties and
questioned why access to equal protections for boys and men was not
highlighted in proposed Sec. 106.45(b)(1). Other commenters generally
asserted, without further explanation, that the proposed grievance
procedure requirements would favor some students and ignore all girls
and women.
Discussion: The Department agrees that treating complainants and
respondents equitably is necessary to ensure a fair resolution of sex
discrimination complaints. The Department agrees that the requirement
to treat complainants and respondents equitably is not limited to
providing supportive measures and following the grievance procedure
requirements before, potentially, imposing disciplinary sanctions.
Section 106.45(b)(1) includes equitable treatment of complainants and
respondents throughout the grievance procedures to ensure they can
engage fully in the grievance procedures.
The Department clarifies that it has not removed the requirement in
the 2020 amendments that any provisions adopted by a recipient as part
of its grievance procedures beyond those required by the amendments
must apply equally to both parties. Instead, the Department proposed
moving the requirement from Sec. 106.45(b) in the 2020 amendments to
proposed Sec. 106.45(i) and broadened this requirement to apply to
grievance procedures for all forms of sex discrimination, not only sex-
based harassment. See 87 FR 41491. These final regulations include this
requirement at Sec. 106.45(j). See Sec. 106.45(j) (``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.'').
Regarding commenters who raised concerns related to the relative
treatment of boys and men as compared to girls and women, Sec.
106.45(b)(1) requires a recipient's grievance procedures to treat
complainants and respondents equitably. This requirement applies
regardless of the sex of the complainant or respondent. The Department
notes that any person regardless of sex may be a complainant or a
respondent, and, thus, requiring a recipient's grievance procedures to
treat complainants and respondents equitably does not discriminate
based on sex. In addition, the Title IX regulations at Sec. 106.31(a)
and (b)(4) require that a recipient carry out its grievance procedures
in a nondiscriminatory manner and prohibit a recipient from
discriminating against any party based on sex.
Changes: None.
Explanation of Equitable Treatment
Comments: Some commenters opposed removal of regulatory language
explaining the meaning of the term ``equitably'' and asked the
Department to retain the language from Sec. 106.45(b)(1)(i) in the
2020 amendments.
One commenter requested that the Department use the term
``equally'' rather than ``equitably'' in proposed Sec. 106.45(b)(1).
In contrast, another commenter asked the Department to clarify that
``equitable'' does not mean strictly ``equal,'' and that the purpose of
proposed Sec. 106.45(b)(1) is fundamental fairness and not rigid
application of procedural rules.
Another commenter asked the Department to define ``equitable'' in
proposed Sec. 106.45(b)(1) by adding ``which means without favoritism,
presumption or bias'' to the end of the provision. The commenter
suggested this language would help alleviate confusion between
``equitable'' and ``equal.'' Another commenter asked the Department to
clarify that ``equitably'' means to treat complainants and respondents
``fairly and without prejudice.''
Discussion: The Department acknowledges that some commenters wanted
the Department to retain the language from Sec. 106.45(b)(1)(i) in the
2020 amendments referring to two examples of treating complainants and
respondents ``equitably,'' but declines to do so. The Department agrees
that a recipient is required to treat complainants and respondents
equitably and Sec. 106.45(b)(1) requires them to do so. As explained
in the July 2022 NPRM, the Department proposed to remove the two
examples of equitable treatment from Sec. 106.45(b)(1)(i) of the 2020
amendments--providing remedies for the complainant when a determination
of responsibility for sexual harassment had been made and following
grievance procedures before imposing disciplinary sanctions on a
respondent--to avoid the impression that these are the only two
situations in which a recipient is required to treat complainants and
respondents equitably. See 87 FR 41466. In the final regulations at
Sec. 106.45(b)(1), the Department makes clear that a recipient is
required to treat complainants and respondents equitably throughout the
grievance procedures; not only at the two stages the 2020 amendments
identified. The Department also agrees with commenters that an
impartial investigation is necessary for the equitable adjudication of
sex discrimination complaints, and notes that the final regulations at
Sec. 106.45(f) require a recipient to provide for an adequate,
reliable, and impartial investigation of complaints. The Department
also notes that the final regulations retain language from the 2020
amendments requiring recipients to comply with the grievance procedure
requirements in Sec. 106.45, and if applicable Sec. 106.46, before
the imposition of any disciplinary sanctions against a respondent. See
Sec. 106.45(h)(4).
In response to requests from commenters to use the term ``equally''
instead of ``equitably,'' the Department clarifies that equitable
treatment of complainants and respondents better effectuates Title IX's
prohibition on sex-based discrimination. Equitable treatment of the
parties has been a longstanding feature of the Department's Title IX
regulations dating back to 1975, including the 2020 amendments. See 40
FR 24128 (codified at 45 CFR 86.8(b) (1975)); 34 CFR 106.8(b)
(current); 34 CFR 106.45(b)(1)(i) (2020 amendments). Consistent with
the position in the 2020 amendments, the Department maintains that the
requirement for equitable treatment recognizes that the interests of a
respondent and complainant may differ. Thus, it is appropriate and
necessary for a recipient to treat complainants and respondents
differently in some respects during the course of the grievance
procedures and the outcomes of the grievance procedures will
necessarily have different consequences for the complainant and the
respondent. See 85 FR 30242. For example, under the final regulations,
a recipient must provide remedies to the complainant as appropriate if
there is a determination that sex discrimination occurred, see Sec.
106.45(h)(3), must use its grievance procedures before imposing
discipline on a respondent, see generally Sec. Sec. 106.45 and 106.46,
and must notify complainants and respondents about and offer supportive
measures at different times, see Sec. 106.44(f)(1).
The Department acknowledges the suggestions from some commenters to
add language defining ``equitably'' as
[[Page 33658]]
``fair[ ] and without prejudice,'' or ``without favoritism,
presumption, or bias.'' The Department declines these suggestions
because the language in Sec. 106.45(b)(1) requiring a recipient's
grievance procedures to treat complainants and respondents equitably,
along with the requirements in Sec. 106.45(b)(2) and (3), already
requires recipients to adopt procedures that are free of favoritism or
bias. For example, any person designated as a Title IX Coordinator,
investigator, or decisionmaker must not have a conflict of interest or
bias for or against complainants or respondents generally or an
individual complainant or respondent. Sec. 106.45(b)(2). In addition,
Sec. 106.45(b)(3) promotes fairness by requiring a recipient's
grievance procedures to include a presumption that the respondent is
not responsible for the alleged sex discrimination until a
determination is made at the conclusion of the recipient's grievance
procedures.
Changes: None.
Trauma-Informed Approach, Fairness, Neutrality
Comments: Some commenters objected to a recipient using a trauma-
informed approach in sex-based harassment cases, arguing that trauma-
informed approaches create bias in favor of complainants that could
influence the outcome of Title IX proceedings. Additionally, some
commenters said that all recipients should be directed to use
``complainant/accuser'' or another neutral term instead of ``victim/
survivor'' when implementing their Title IX grievance procedures.
However, another commenter stated the grievance procedures must be
complainant-centered and trauma-informed.
One commenter asked the Department to ensure that a recipient's
disciplinary procedures are fair, and stated that stereotypes can lead
to biased treatment of complaints from students of color, LGBTQI+
students, and students with disabilities.
Discussion: The Department understands the term ``trauma-informed
approach'' to mean an approach that takes into consideration the signs
and symptoms of trauma and takes steps to avoid re-traumatizing
individuals participating in a recipient's Title IX grievance
procedures. Consistent with the Department's position explained in the
preamble to the 2020 amendments, a recipient has discretion to use a
trauma-informed approach in handling sex discrimination complaints, as
long as the approach complies with the requirements in the final
regulations, including the grievance procedure requirements in Sec.
106.45, and if applicable Sec. 106.46. See 85 FR 30187. Under Sec.
106.45(b)(2) and (6), recipients must be fair, unbiased, and impartial
toward both complainants and respondents.
With respect to commenter concerns about the terminology used in
grievance procedures, the Department declines to require a recipient to
use or prohibit a recipient from using specific terms--including
``complainant,'' ``respondent,'' ``survivor,'' or ``victim''--when
implementing its Title IX grievance procedures. In addition to final
Sec. 106.45(b)(1)'s general requirement that complainants and
respondents be treated equitably, the final regulations at Sec.
106.45(b)(2) require that persons designated as Title IX Coordinators,
investigators, or decisionmakers not have conflicts of interests or
bias for or against complainants or respondents. And final Sec.
106.45(b)(6) provides that recipients' grievance procedures must
require an objective evaluation of all evidence that is relevant and
not otherwise impermissible, and provide that credibility
determinations must not be based on a person's status as a complainant,
respondent, or witness.
The Department agrees that a recipient's disciplinary procedures
must be fair, and acknowledges that data and other evidence indicate
that some complainants have been subjected to stereotyping based on sex
and race, and that complainants of color, LGBTQI+ complainants, and
complainants with disabilities have faced challenges in reporting sex-
based harassment. For more information on the data and other evidence,
see the discussion of Data Related to Sex-Based Harassment in Section
I.C. The Department notes that the final regulations include
requirements that outcomes not be based on stereotyping and that
recipients remove barriers to reporting harassment, which would include
those that the communities identified by the commenters have faced. See
Sec. Sec. 106.45(b)(6), 106.44(b). The Department emphasizes that
every person, regardless of demographic or personal characteristics or
identity, is entitled to the same protections against sex
discrimination under these final regulations, and that every individual
should be treated with fairness, equal dignity, and respect. The
grievance procedure requirements in the final regulations--including
the requirement to treat complainants and respondents equitably--
appropriately protect the due process rights of the persons involved in
a recipient's grievance procedures and provide for fair and reliable
resolutions of complaints of sex discrimination. Final Sec.
106.45(h)(4) requires a recipient to comply with the grievance
procedure requirements in Sec. 106.45, and if applicable Sec. 106.46,
before imposing discipline on a respondent. In addition, final Sec.
106.45(h)(5) precludes 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 whether sex
discrimination occurred. These provisions, along with others, protect
individuals participating in the grievance process from unfair or
improper sanctions that may chill reporting, improperly rely on
stereotypes, or detract from the fairness of the process. Anyone who
believes that a recipient has failed to comply with any of the
requirements in the final regulations or the other civil rights laws
enforced by OCR, including those that prohibit discrimination based on
race and disability, may file a complaint with OCR.
Changes: None.
4. Section 106.45(b)(2) Conflicts of Interest or Bias
Prohibition on Conflicts of Interest and Bias
Comments: Commenters generally agreed that the bias and conflict of
interest prohibitions in proposed Sec. 106.45(b)(2) for the Title IX
Coordinator, investigators, decisionmakers (as well as identical
prohibitions in Sec. 106.44(k)(4) for informal resolution
facilitators) were important because bias persists in schools, and
students and employees deserve to have confidence that their
institution will uphold their rights without bias or conflicts of
interest. However, one commenter recommended that the Department retain
the version of Sec. 106.45(b)(1) from the 2020 amendments. The
commenter argued that version reflected many court decisions that found
recipients biased in favor of complainants or girls and women in their
resolution of Title IX complaints.
In addition, one commenter argued that proposed Sec. 106.45(b)(2)
would not sufficiently guard against bias that can arise in Title IX
matters. The commenter expressed concern that policies that do not
actively mitigate bias will have the effect of reinforcing bias and
discrimination. Some commenters asserted that the proposed regulations
would encourage Title IX Coordinators to measure success by the number
of
[[Page 33659]]
reports received, investigations completed, and students found
responsible rather than by the fairness of the proceedings and
reduction of errors.
Some commenters reported personal experiences of dealing with bias
or conflicts of interest in the Title IX process, including when they
felt a school showed bias in favor of certain respondents, such as
athletes, or bias against respondents generally.
Moreover, some commenters expressed concern that the proposed
regulations failed to address the competence and integrity of
investigators. To better protect against bias and conflicts of
interest, some commenters proposed ensuring that the training
requirements in Sec. 106.8(d) explicitly address anti-bias training,
ensuring that parties to a Title IX investigation are notified of the
identity of the investigators and decisionmakers before the
investigation begins so that they have the opportunity to raise
concerns about bias, and including slow and deliberate processes and
checks and balances.
Additionally, some commenters proposed alternative measures or
approaches to addressing conflict of interest or bias. Some commenters
maintained that Title IX allegations should only be investigated by law
enforcement. One commenter suggested that decisionmaking should be
assigned to independent, State-level commissions made up of trained
Title IX officials elected for long terms and funded by dues from the
recipients in each State. One commenter recommended that Title IX
Coordinators be required to provide information verifying that the
officials involved in the grievance procedures have no conflict of
interest or bias with respect to the parties involved or the recipient.
Another commenter expressed concern that Sec. 106.45(d)(3), which
addresses appeals of decisions dismissing a complaint, does not require
the recipient to ensure there is no bias or conflict of interest, or to
allow the parties to raise such an objection if so. Further, some
commenters suggested that recipients ensure a neutral factfinder for
cases in which the Title IX Coordinator pursues an investigation after
the complainant decides not to do so. Other commenters stated that the
regulations should specifically address bias in cases involving
Multiple Perpetrator Sexual Assault (MPSA).
Other commenters asked the Department to clarify, possibly through
supplemental guidance, which roles (such as principal, athletics
director, or general counsel) may create a conflict of interest if they
also serve as Title IX Coordinator. Some commenters who have
represented complainants in Title IX investigations said that Title IX
investigators are predisposed to issue findings of no responsibility
and are reluctant to expel or suspend respondents to protect their
institution from lawsuits. Some commenters asserted that a recipient's
employees cannot be objective and unbiased decisionmakers because they
rely on the recipient for their salary.
One commenter argued that proposed Sec. 106.45(b)(2) might be
particularly difficult for smaller postsecondary institutions because
of the relationships that staff members develop with students at such
institutions. This commenter further stated that avoiding conflicts of
interest may affect how long it takes to resolve a complaint and
increase costs for such institutions, by requiring them to hire outside
personnel.
Discussion: The Department appreciates the variety of comments
shared in support of Sec. 106.45(b)(2). The Department agrees that the
final regulations are important for ensuring a fair process, free from
bias and conflicts of interest, that supports all members of a
recipient's community and promotes trust in a recipient's grievance
process.
With respect to a commenter's preference for the 2020 amendments,
the Department notes that the proposed and final regulations' general
prohibition on conflict of interest or bias for or against complainants
or respondents generally or an individual complainant or respondent
largely mirrors the language of the 2020 amendments, except with
respect to the categorical prohibition in 2020 on the use of a single-
investigator model described in more detail below.
The Department disagrees with commenters' assertions that the
proposed anti-bias provision does not adequately address the competence
and integrity of investigators or other decisionmakers, including Title
IX Coordinators or individuals who resolve appeals. In response to the
commenter who expressed concern that Sec. 106.45(d)(3) does not
require the recipient to ensure there is no bias or conflict of
interest, the Department notes that Sec. 106.45(b)(2) applies to all
decisionmakers, including those who decide appeals of dismissals, and
it is therefore unnecessary for Sec. 106.45(d)(3) to restate the
obligation. The Department has determined that recipients should have
discretion in determining the bases for appeal of dismissals, other
than those that fall under Sec. 106.46(i). See 87 FR 41489; Sec.
106.45(i).
The Department maintains that Sec. 106.45(b)(2) and the other
anti-bias provisions in the final regulations contain adequate
safeguards to maintain integrity and protect against investigator or
decisionmaker misconduct. For example, Sec. 106.45(b)(1) requires a
recipient to treat complainants and respondents equitably; Sec.
106.45(b)(3) requires the grievance procedures to, among other things,
include a presumption that the respondent is not responsible for the
alleged sex discrimination until a determination is made at the
conclusion of the recipient's grievance procedures; Sec. 106.45(b)(5)
requires a recipient to take reasonable steps to protect the privacy of
the parties and witnesses during the grievance procedures (subject to
certain exceptions); and Sec. 106.45(b)(6) requires an objective
evaluation of all relevant and not otherwise impermissible evidence and
provides that credibility determinations will not be based on a
person's status as a complainant, respondent, or witness. Recipients
are also required to train investigators on how to serve impartially,
including by avoiding prejudgment of the facts at issue, conflicts of
interest, and bias. See Sec. 106.8(d). For more explanation of the
regulations' training requirements and investigator neutrality, see the
discussion of Sec. 106.8(d).
The Department declines to add additional grievance procedure
requirements regarding conflict of interest and bias because the
grievance procedures required by the final regulations provide fair
resolution of complaints of sex discrimination and adequately protect
against conflict of interest and bias. In addition to the protection
just identified in Sec. 106.45(b), Sec. 106.45(i) requires a
recipient to offer the parties an appeal that, at minimum, is the same
as it offers in all other comparable proceedings, if any. Section
106.46(i) further requires a postsecondary institution to offer an
appeal based on factors that would change material aspects of the
matter, including, among other things, a procedural irregularity that
would change the outcome, and decisionmaker conflict of interest or
bias that would change the outcome. In addition, anyone who believes
that a recipient has failed to comply with any of the requirements in
the final regulations, including those related to conflicts of interest
or bias and treating complainants and respondents equitably, may file a
complaint with OCR.
Regarding commenters' request for supplemental guidance on whether
allowing persons with particular job
[[Page 33660]]
responsibilities at a recipient--such as principal, athletics director,
or general counsel--to also serve as Title IX Coordinator would
constitute a conflict of interest, the Department declines to identify
any roles that would presumptively constitute a conflict of interest
for any recipient. The Department notes that determining whether a
conflict of interest exists is likely to be fact-specific, and that
recipients assign roles differently and are in the best position to
determine to whom to assign the role of Title IX Coordinator. The
Department agrees that supporting recipients and Title IX Coordinators
in implementing these regulations is important, and the Department will
offer technical assistance, as appropriate, to promote compliance with
these final regulations.
The Department does not agree with commenters' broad-based
assumption that a recipient's employees are inherently biased in favor
of the recipient or that Title IX Coordinators are biased against
respondents who are boys and men, and notes that commenters have
provided no evidence to support such assertions.
The Department appreciates the opportunity to clarify the role of
law enforcement in Title IX matters. While allegations of conduct that
constitutes sex discrimination under Title IX sometimes also could
constitute criminal offenses under other laws, the Department disagrees
that law enforcement is better positioned than recipients to evaluate
claims of sex discrimination under Title IX. Whereas the criminal
justice system can address criminal conduct, only recipients can
address equal access to their education programs and activities. The
Department notes that in circumstances in which alleged sex
discrimination may also be a crime, it would be appropriate for law
enforcement to pursue their own investigation of such conduct.
With respect to the comment about establishing independent State
commissions to resolve Title IX complaints, the Department notes that a
recipient may delegate duties under these final regulations to
designees, including designees who are not employees of the recipient,
as long as implementation of its grievance procedures satisfies all of
the requirements in these final regulations, including training
designees consistent with Sec. 106.8(d). See Sec. 106.8(a)(2). The
Department can offer technical assistance to recipients or States who
seek to establish such a commission to meet their obligations under
these final regulations.
The Department appreciates that a Title IX Coordinator,
investigator, or decisionmaker may sometimes have relationships with
students, particularly at smaller institutions, which could create a
conflict of interest or bias for or against an individual complainant
or respondent. This does not relieve recipients of their duty to comply
with Sec. 106.45(b)(2)'s requirement that the investigator or
decisionmaker for any particular complaint be free of conflicts of
interest or bias. The Department has long made clear that adequate,
reliable, and impartial investigations are a critical component of
grievance procedures. See, e.g., 2001 Revised Sexual Harassment
Guidance, at 15, 20. A recipient has flexibility in how it ensures its
personnel are unbiased, which could include restricting Title IX
personnel from pursuing close relationships with students, training
more than one employee to perform Title IX roles so they can step in
when conflicts of interest arise, or hiring outside personnel when
conflicts of interest arise.
Changes: None.
Single-Investigator Model
Comments: Proposed Sec. 106.45(b)(2) stated that the decisionmaker
may be the same person as the Title IX Coordinator or investigator.
Directed Question 3 in the July 2022 NPRM invited comments on
recipients' experiences using the single-investigator model that was
referenced in proposed Sec. 106.45(b)(2). In response, commenters
provided information and model policies, which the Department reviewed.
Commenters also offered many differing views about the single-
investigator model, and whether the regulations should permit
recipients to adopt some form of it or instead prohibit its use.
Support for allowing the model. Some commenters expressed general
support for allowing the single-investigator model in proposed Sec.
106.45(b)(2). For example, some commenters stated that the model would
provide a recipient more flexibility to respond promptly to sex-based
harassment, and some stated it would better serve elementary school and
secondary school children. One commenter noted that greater flexibility
would make the Title IX grievance procedures less judicialized, and
another commenter supported proposed Sec. 106.45(b)(2) provided that a
recipient has appropriate checks and balances in place to ensure a fair
and impartial process. Some commenters noted that other parts of the
proposed regulations provide additional protections to ensure a fair
and equitable investigation--including by prohibiting conflicts of
interest, allowing parties to respond to the investigative report or
relevant evidence, and providing appeals based on conflict of interest
or bias.
Other commenters, including a system of State postsecondary
institutions, supported proposed Sec. 106.45(b)(2) as more time- and
cost-effective than the requirements in the 2020 amendments. They
argued that the proposed provision would allow recipients to shorten
grievance procedure timelines, allow the individual with the most
knowledge of the investigation to make the determination, and increase
efficiency in scheduling. One commenter added that proposed Sec.
106.45(b)(2) would allow investigators to reach individuals when their
memories are fresher and ensure witnesses are available. Another
commenter supported the model as better suited to the scale of
operations in large school districts and allowing a district Title IX
Coordinator to have designees carry out some responsibilities at the
school level. Some commenters stated that, in their experience,
individuals who normally serve as a single investigator tend to have
lower turnover and be more highly trained, are skilled in other types
of investigations, and have the most investigative experience.
Further, some commenters supported proposed Sec. 106.45(b)(2)
because, they concluded, it would encourage reporting under Title IX by
avoiding direct confrontations between the parties. Commenters observed
that this would improve complainant confidence and a sense of safety.
One commenter supported proposed Sec. 106.45(b)(2) because it would
encourage reporting by making the Title IX grievance procedures less
prescriptive. Relatedly, some commenters said that parties and
witnesses are usually more open to participating and sharing
information in a private and contained process. One commenter asserted
the model helps alleviate the anxiety that live hearings can create for
complainants, respondents, and witnesses.
Opposition to or criticism of the model. Other commenters stated
that the single-investigator model exceeds the Department's authority
and is inconsistent with Title IX and established case law or State
law. Some commenters asserted that proposed Sec. 106.45(b)(2) would
ignore what they claimed is a lengthy record of Federal court criticism
of the model. Some commenters asserted that proposed Sec. 106.45(b)(2)
would force recipients to implement procedures like those under the
2011 Dear Colleague Letter on
[[Page 33661]]
Sexual Violence, or pressure recipients into adopting a single-
investigator model, which one commenter asserted was the case prior to
the 2020 amendments. Another commenter stated that restoring the
single-investigator model would ignore the reliance interests that
recipients have in the 2020 amendments.
Impartiality and arbitrariness. A number of commenters were
concerned about bias and arbitrariness. For example, one commenter
stated that single investigators cannot review their own work for
fairness, completeness, neutrality, and lack of bias. Another commenter
shared stories from clients who reported that investigators were biased
in favor of the complainant, ignored evidence, failed to ask questions,
and had opaque procedures. Other commenters expressed concerns about
confirmation bias and motivated reasoning on the part of investigators.
Some commenters asserted there is no evidence that additional training
can mitigate the risk of errors and unconscious biases. Other
commenters argued that potential bias renders the proposed regulations
arbitrary and capricious. Relatedly, one commenter stated that the
Department has recognized the perceived importance of separating the
roles of Title IX Coordinator, investigator, and decisionmaker in
proposed Sec. 106.44(k)(4) and asserted that the failure to do so for
grievance procedures would be arbitrary and capricious.
Due process. Other commenters opposed the model on due process
grounds. For example, one commenter stated the model would make it more
difficult to raise concerns with a recipient's grievance procedures and
investigation if the Title IX Coordinator, investigator, and
decisionmaker are the same person. One commenter said this is
particularly concerning because proposed Sec. 106.45(d)(1)(iv) would
allow an investigator to clarify the allegations in a manner that
validates their investigation. Some commenters objected that proposed
Sec. 106.45(b)(2) would curtail ``due process protections'' put in
place under the 2020 amendments such as an independent adjudicator, a
clear and convincing evidence standard, cross-examination, and hearing
rights. Additional commenters claimed that the single-investigator
model inhibits the ability to test credibility; those commenters raised
concerns about questions posed to parties in private and during
individual meetings, and about the absence of adversarial questioning
at a live hearing. One commenter expressed concern that a person
serving as Title IX Coordinator and decisionmaker might be influenced
by irrelevant evidence they reviewed during the investigation that was
never acknowledged or disclosed to the parties.
Resources and timeliness. Some commenters asserted that the single-
investigator model would suffer from lack of resources, specialized
training, and competence of campus Title IX staff. Some commenters were
concerned that the model would cause delays in grievance procedures,
and one commenter stated that proposed Sec. 106.45(b)(2) would require
a recipient to conduct a new procedure if it determines that the single
investigator had a conflict of interest or bias. Other commenters
stated that timeframes would be extended if a single person is
responsible for multiple investigation phases at the same time. One
commenter stated that the Department did not identify the potential
length of delay when investigators are separate from adjudicators,
whether this delay outweighs the risk of bias in a single-investigator
model, and what length of delay would be appropriate to ensure due
process. One commenter was concerned that proposed Sec. 106.45(b)(2)
would make it difficult for faculty members to participate in
complaints that are academic in nature, asserting that the single-
investigator model fails to utilize faculty expertise to reach reliable
outcomes. Other commenters argued that Sec. 106.45(b)(2) could lead to
an increase in litigation.
Further, some commenters rejected financial savings and
administrative capacity as justifications for the single-investigator
model. For instance, one commenter asserted that short-term savings
under the model would be outweighed by negative consequences to the
accused and loss of due process rights. One commenter stated that
although the Department and commenters asserted that small recipients
struggle with the administrative capacity to handle grievance
procedures, the Regulatory Impact Analysis in the 2020 amendments
indicated that the regulatory changes adopted in 2020 would generate
additional costs to small institutions of higher education of only
approximately 0.28 percent of annual revenue. Another commenter stated
that Department and stakeholder concern for parties who want to
minimize their interaction with employees involved in Title IX cases
can be better addressed by limiting the job duties of those responsible
for grievance procedures. The commenter suggested recipients could pool
resources to set up regional tribunals, and stated this option was not
considered in the Department's Regulatory Impact Analysis in the July
2022 NPRM.
Suggested modifications. Other commenters suggested changes to
strengthen the impartiality of the model. For example, one commenter
recommended using more than one investigator, investigators from
outside the unit from which the complaint arose, or investigators
outside of the college or university. Other commenters recommended that
appeals be required. Still other commenters suggested that the
regulations be modified to allow investigators to make non-binding
recommended findings of responsibility. And some commenters suggested
best practices of, for example, investigators asking parties to review
their interview summary, ensuring all parties can view and respond to
all information, and capturing their responses in the investigation
report. One commenter stated that the final sentence of proposed Sec.
106.45(b)(2) should be revised to state, ``The decisionmaker may be the
same person as the Title IX Coordinator and/or investigator.''
Other commenters recommended that the final regulations make the
single-investigator model available on a limited basis. One commenter
would prohibit its use by postsecondary institutions unless they can
show that resource limitations or recipient size preclude the use of
any other model, and require recipients that use the model to provide a
full written decision of its determination to facilitate appeals.
Another commenter suggested that a single-investigator model should not
be allowed unless a respondent makes a voluntary and informed choice to
proceed with the model, and some commenters recommended that the model
only be allowed if both parties agree to its use. Other commenters
stated that the model should not be allowed when conduct violations may
result in a marked transcript, suspension, or expulsion.
Requests for clarification. Finally, several commenters asked for
clarification. One commenter requested clarification about whether the
individual who acts as the decisionmaker on appeal may serve in any
other role during the grievance procedures and recommended against it.
Another commenter requested clarification that using outside entities
to conduct investigations may alleviate concerns of bias or conflicts
of interest, and another commenter asked whether a recipient has
discretion to employ a panel or board as a single investigator. Some
commenters requested that the single-investigator model be more
[[Page 33662]]
clearly defined. For example, one commenter asked the Department to
clarify whether a recipient has discretion to use a single-investigator
model for some but not all cases, or to separate the role of
decisionmaker from the individual who determines sanctions. One
commenter, a State postsecondary institution, noted it is required to
conduct a live hearing in certain cases under State law but would
prefer to use a single-investigator model when possible. It requested
clarification on whether different procedures could be used for student
and employee respondents or if one procedure compliant with proposed
Sec. 106.46 is required. Another commenter asked the Department to
clarify whether it is still true that the Title IX Coordinator cannot
be the decisionmaker.
Discussion: The Department acknowledges commenters' support for
proposed Sec. 106.45(b)(2) and agrees with the reasons commenters gave
for retaining proposed Sec. 106.45(b)(2). We respond to comments
below.
General opposition to the single-investigator model. The Department
disagrees with commenters who asserted that proposed Sec. 106.45(b)(2)
would force recipients to implement procedures like those under the
2011 Dear Colleague Letter on Sexual Violence, or pressure recipients
into adopting a single-investigator model. Similar to the proposed
regulations, the final regulations permit, but do not require, a
single-investigator model. As explained in the July 2022 NPRM,
throughout listening sessions and the June 2021 Title IX Public
Hearing, OCR heard about the importance of providing recipients
flexibility in how to structure their Title IX grievance procedures to
accommodate each institution's unique circumstances. 87 FR 41457-58.
OCR also learned that requiring separate staff members to handle
investigation and adjudication is burdensome for some recipients in a
way that undermines their ability to ensure their education programs or
activities are free from sex discrimination under Title IX. 87 FR
41466-67. The Department maintains that permitting, but not requiring,
the single-investigator model (which would allow recipients to use a
single investigator, a group of investigators, or internal or external
investigators), in conjunction with the other measures designed to
ensure equitable treatment of the parties as required throughout Sec.
106.45, and if applicable Sec. 106.46, addresses commenters' concerns
by offering recipients reasonable options to structure their grievance
procedures in compliance with Title IX, while accommodating each
institution's administrative structure, educational community, and
applicable Federal and State case law and State or local legal
requirements.
The Department acknowledges that recipients and other stakeholders
may have made changes to their policies or procedures in reliance on
the 2020 amendments. But stakeholder feedback from the June 2021 Public
Hearing, the 2021 listening sessions, the 2022 meetings held under
Executive Order 12866, and responses to the July 2022 NPRM indicated
that many recipients found that some of the procedural requirements in
the 2020 amendments made compliance more difficult for them, including
for example mandatory dismissal requirements and live hearing and cross
examination requirements. Therefore, the Department has good reason to
believe that many recipients will appreciate the flexibility these
final regulations will afford them, including the option to use a
single-investigator model, to better fulfill their obligation not to
discriminate based on sex in their education programs or activities.
See 87 FR 41397. The Department notes that recipients would have the
discretion under the final regulations to keep in place policies and
procedures adopted in reliance on the 2020 amendments that utilize
separate investigators and decisionmakers or to change course and adopt
a single investigator model as long as they meet their obligations
under these final regulations. Recipients are well-suited to assess
whether the benefits of using a single investigator model that complies
with the final regulations outweighs any costs that recipients will
incur as a result of making such a change.
The Department disagrees that Sec. 106.45(b)(2) exceeds the
Department's authority or is inconsistent with Title IX or established
case law. In adopting Sec. Sec. 106.45 and 106.46, the Department is
acting within the scope of its congressionally delegated authority
under 20 U.S.C. 1682, which directs the Department to issue regulations
to effectuate the purposes of Title IX. The Supreme Court has
recognized the Department's ``authority to promulgate and enforce
requirements that effectuate the statute's nondiscrimination mandate,''
including requiring that a recipient adopt and publish grievance
procedures for resolving complaints of sex discrimination. Gebser, 524
U.S. at 292. The final regulations, which include permissive use of a
single-investigator model, govern how a recipient responds to sex
discrimination in the recipient's education program or activity, and
were promulgated to effectuate the purposes of Title IX and fully
implement Title IX's nondiscrimination mandate. Because Sec.
106.45(b)(2) permits but does not require a single-investigator model,
recipients can choose a model that allows them to comply with legal
requirements in their jurisdiction that may require separation of the
investigator and decisionmaker functions.
Impartiality and arbitrariness. The Department disagrees that
changes to Sec. 106.45(b)(2) are necessary to protect against bias
because the final regulations appropriately balance flexibility for
recipients with protections against bias by investigators and
decisionmakers. Section 106.45(b)(2) prohibits any person from serving
as a Title IX Coordinator, investigator, or decisionmaker if they have
a conflict of interest or bias, either for or against complainants or
respondents generally or an individual complainant or respondent.
Additionally, in circumstances in which an otherwise unbiased Title IX
Coordinator, because of a close relationship with a particular party,
may not be able to serve as investigator or decisionmaker, a recipient
retains the flexibility to utilize an alternative investigator or
decisionmaker. The final regulations, like the proposed regulations,
contain other obligations to ensure overall fairness and accuracy in
grievance procedures. As discussed in detail above in the discussion of
bias and conflicts of interest, the final regulations contain numerous
provisions directed at ensuring overall fairness and accuracy in
grievance procedures.
The Department disagrees that Sec. 106.44(k)(4) renders the
single-investigator model arbitrary and capricious. The commenter is
correct that under Sec. 106.44(k)(4), the person who facilitates
informal resolution cannot be the same person as the investigator or
decisionmaker in order to allow the parties to participate fully and
candidly in the informal resolution process. As explained in the July
2022 NPRM, the Department views this provision as furthering
protections 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 Sec. 106.45, and if applicable Sec. 106.46. 87 FR
41455. The Department's support for Sec. 106.44(k)(4) is not
inconsistent with allowing a single-investigator model under Sec.
106.45(b)(2). The grievance procedures
[[Page 33663]]
at Sec. 106.45, regardless of whether the investigator and
decisionmaker are the same person, include numerous procedural
protections.
For instance, the grievance procedures require an objective
evaluation of all relevant and not otherwise impermissible evidence,
consistent with the definition of ``relevant'' in Sec. 106.2 and with
Sec. 106.45(b)(7)--including both inculpatory and exculpatory
evidence. See Sec. 106.45(b)(6). In an investigation, under Sec.
106.45(f)(3), the recipient must 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 Sec. 106.45(b)(7). In the decisionmaking process,
under Sec. 106.45(h)(1), the decisionmaker must evaluate relevant and
not otherwise impermissible evidence for its persuasiveness, and if the
decisionmaker is not persuaded under the applicable standard of proof
by the evidence that sex discrimination occurred, whatever the quantity
of the evidence is, the decisionmaker must not determine that sex
discrimination occurred. Thus, permitting the investigator and
decisionmaker to be the same person will not result in improper access,
consideration, or disclosure of information, nor will it create a
conflict of interest, because the investigator and decisionmaker have
the same responsibility--to evaluate all relevant evidence. The
Department confirms, however, that a recipient's grievance procedure
must still require that any person designated as an investigator or
decisionmaker not have a conflict of interest or bias for or against
complainants or respondents generally or an individual complainant or
respondent. See Sec. 106.45(b)(2). Therefore, if an investigator
developed a conflict of interest or bias during an investigation, then
the recipient must designate someone else to serve as the investigator
and decisionmaker.
Similarly, the Department does not agree that the Title IX
Coordinator must be categorically prohibited from serving as an
investigator or decisionmaker because an evaluation of all relevant and
not otherwise impermissible evidence is also not inherently
inconsistent with the Title IX Coordinator's responsibility to
coordinate the recipient's compliance with its obligations under Title
IX and the final regulations. See Sec. 106.44(f). However, a recipient
must ensure that the Title IX Coordinator can serve in these roles
without conflict of interest or bias.
The Department also disagrees that Sec. 106.45(b)(2) gives too
much power to the Title IX Coordinator. The Title IX Coordinator must
treat the complainant and respondent equitably and must not have a
conflict of interest or bias for or against complainants or respondents
generally or an individual complainant or respondent. If the Title IX
Coordinator cannot serve as an investigator or decisionmaker without
conflict of interest or bias, then the Title IX Coordinator must not
serve in that role.
Due Process. The Department also disagrees that the single-
investigator model, if adopted by a recipient, would make it more
difficult to raise concerns with a recipient's grievance procedures and
investigation if the Title IX Coordinator, investigator, and
decisionmaker are the same person. The final regulations contain a
number of safeguards to ensure that any party is able to raise concerns
related to Title IX and have such concerns fully and fairly heard. As
stated above, the Title IX Coordinator must treat the complainant and
respondent equitably, see Sec. Sec. 106.45(b)(1) and 106.44(f)(1)(i),
and must not have a conflict of interest or bias for or against
complainants or respondents generally or an individual complainant or
respondent, see Sec. 106.45(b)(2). If a party raises concerns
regarding a recipient's grievance procedures, and the Title IX
Coordinator cannot serve as an investigator or decisionmaker without
conflict of interest or bias, then the Title IX Coordinator must not
serve in that role. With respect to the commenter's concern that Sec.
106.45(d)(1)(iv) would allow a recipient to clarify allegations in a
manner that ``validates'' their initial determination to investigate,
the Department notes that the decision to dismiss a complaint is
appealable if a party believes that the decision to investigate was
biased or that a conflict of interest impacted the recipient's efforts
to clarify the initial allegations, and the recipient must ensure that
the decisionmaker for the appeal did not take part in an investigation
of the allegations or dismissal of the complaint. See Sec.
106.45(d)(3)(iii).
The Department disagrees that the single-investigator model, if
adopted by a recipient, inhibits the ability to test credibility. The
final regulations require an objective evaluation of all relevant and
not otherwise impermissible evidence, consistent with the definition of
``relevant'' in Sec. 106.2 and with Sec. 106.45(b)(7)--including both
inculpatory and exculpatory evidence--and prohibit basing credibility
determinations on a person's status as a complainant, respondent, or
witness. Sec. 106.45(b)(6). A recipient must provide a process that
enables the decisionmaker to question parties and witnesses to
adequately assess a party's or witness's credibility, to the extent
credibility is both in dispute and relevant to evaluating one or more
allegations of sex discrimination. For additional discussion of the
evaluation of allegations and assessment of credibility, see the
discussion of Sec. 106.45(g).
In addition, the Department disagrees that due process principles
require the investigator and decisionmaker to be different individuals.
As the Department has explained elsewhere, due process ``varies
according to specific factual contexts.'' Hannah v. Larche, 363 U.S. at
442; see also discussion of Due Process Generally (Section II.C). Here,
the safeguards detailed above--including the requirement that
investigators and decisionmakers not have conflicts of interest or bias
for or against complainants or respondents individually or generally,
see Sec. 106.45(b)(2), ensure that the process is consistent with due
process. See generally Mathews, 424 U.S. at 335 (describing the factors
weighed in determining whether the requirements of due process have
been met).
Resources and timeliness. The Department continues to believe, as
stated in the July 2022 NPRM, see 87 FR 41467, that permitting the
single-investigator model will relieve administrative burden for some
recipients, especially smaller institutions, without sacrificing the
quality and reliability of investigations or decisionmaking. Although
such recipients could engage outside investigators or adjudicators to
separate the roles, permitting a single-investigator model is
consistent with a fair grievance procedure and provides flexibility to
recipients consistent with their compliance responsibilities under
Title IX and these regulations. The Department acknowledges that under
a single-investigator model, a recipient may choose not to have a
faculty member in an investigatory or decisionmaking role in complaints
involving academic matters, but the Department has determined that
giving recipients discretion to determine who should conduct
investigations and engage in decisionmaking is consistent with Title
IX. As long as a recipient's grievance procedure comports with the
requirements of Sec. 106.45, and if applicable Sec. 106.46,
recipients have the discretion to use the model that works best for
their educational community.
[[Page 33664]]
The Department disagrees that the single-investigator model will
necessarily cause delays in the grievance process compared to other
options, and notes that commenters had varying views of which model--a
single-investigator model or hearing model--would cause more delay. The
Department maintains that the flexibility that availability of the
single-investigator model will provide to recipients is important, that
permitting recipients to adopt a single-investigator model will not
necessarily introduce more delay compared to the hearing model, and
that any concerns about delay associated with that model are addressed
by other provisions in the final regulations, including Sec. Sec.
106.45(b)(4) and 106.46(e)(5), that protect against such delay.
Regardless of whether a recipient uses the single-investigator model,
or has separate investigators and adjudicators, recipients must
establish prompt and reasonable timeframes for their grievance
procedures, see Sec. 106.45(b)(4), and have a broader duty to address
complaints of sex discrimination in a ``prompt'' manner, id. Sec.
106.45(a)(1).
In response to commenters who suggested that Sec. 106.45(b)(2) and
the single-investigator model will lead to an increase in private
lawsuits against recipients and OCR complaints, the Department believes
this to be speculative. Commenters who suggest that the single-
investigator model will increase lawsuits and complaints assume there
will be conflicts of interest and bias, undue delays, or other
procedural irregularities, but the final regulations address these
concerns, as discussed above. The Department agrees with commenters
that considerations of financial savings and administrative capacity
should not supersede considerations of fairness and due process, and--
as evidenced by the comments the Department received in response to the
July 2022 NPRM--the Department firmly maintains that the single-
investigator model will sacrifice neither.
Suggested modifications. For the reasons explained in the prior
sections discussing impartiality, bias, and due process, the Department
maintains that further changes are not needed to ensure impartiality if
a recipient decides to use a single-investigator model.
The Department declines commenters' suggestions to change the final
regulations to make the single-investigator model available on a
limited basis or to require the complainant and respondent to consent
in writing before a postsecondary institution may utilize a single-
investigator model because recipients are in the best position to
determine whether the single-investigator model is appropriate and
consistent with their compliance obligations related to grievance
procedures under Title IX. The Department maintains that, by setting
forth the specific requirements for prompt and equitable grievance
procedures, while allowing some discretion for recipients within that
framework to account for size, type, resources, administrative
structure, expertise, and other unique factors at individual
institutions, the final regulations set forth a highly effective
compliance framework. Nothing in the final regulations precludes a
postsecondary institution from deciding that it will only use a single-
investigator model when both parties consent in writing.
The Department notes, however, that we have added Sec.
106.45(b)(8) to the final regulations to ensure that a recipient's
educational community is aware in advance of when a recipient will
utilize a single-investigator model. We have done so partly in response
to comments asking whether a recipient has discretion to use a single-
investigator model in some but not all cases. See also discussion of
Sec. 106.45(b)(8). When a recipient chooses to adopt grievance
procedures that apply to the resolution of some, but not all,
complaints, Sec. 106.45(b)(8) requires a recipient's grievance
procedures to articulate consistent principles for how the recipient
will determine which procedures apply. Under this provision, for
example, a postsecondary institution that chooses to utilize a live
hearing only for some types of sex-based harassment complaints and a
single-investigator model for others would be required to explain in
its grievance procedures the circumstances under which, or the types of
complaints to which, either model would apply. A recipient's
determination regarding whether to apply certain procedures to some,
but not all, complaints must be made in a manner that treats
complainants and respondents equitably, consistent with Sec.
106.45(b)(1).
Requests for Clarification. The Department appreciates the
opportunity to clarify that Sec. 106.45 of the final regulations
requires an appeal process that, at minimum, is the same as it offers
in all other comparable proceedings, if any, including proceedings
relating to other discrimination complaints. See Sec. 106.45(i). The
Department declines to require recipients to provide for a live hearing
during the appeals process, but notes that nothing in the final
regulations precludes a recipient from providing such a hearing in its
discretion or when required by applicable case law or other sources of
law. As explained in the prior section responding to requests for
modifications, recipients have discretion to use a single-investigator
model in some but not all cases, as long as the recipient articulates
consistent principles for how it will determine which procedures will
apply under Sec. 106.45(b)(8). The Department also clarifies that a
recipient has discretion to use outside entities to conduct
investigations; to employ a panel or board of individuals to function
as the decisionmaker; to employ more than one investigator for a
complaint; and to separate the roles of decisionmaker, investigator,
and sanctioning officer. As long as a recipient's grievance procedures
comport with the requirements of Sec. 106.45, and if applicable Sec.
106.46, recipients have the discretion to use the model that works best
for their educational community.
Changes: The Department has added a new Sec. 106.45(b)(8),
requiring a recipient to articulate consistent principles for how it
will determine whether certain grievance procedures apply to some, but
not all, complaints, if a recipient adopts grievance procedures that
apply to the resolution of some, but not all, complaints.
5. Section 106.45(b)(3) Presumption That the Respondent Is Not
Responsible for the Alleged Sex Discrimination Until a Determination Is
Made at the Conclusion of the Grievance Procedures
Comments: The Department received a range of views from commenters
regarding the presumption of non-responsibility in proposed Sec.
106.45(b)(3).
Several commenters supported proposed Sec. 106.45(b)(3). For
example, one commenter considered the presumption of non-responsibility
essential for securing a just result, and remarked that a Title IX
hearing can lead to social and psychological injury, lost educational
opportunity, and termination or denial of tenure for employees. Another
commenter argued that respondents should not have the burden to ``prove
a negative,'' and asserted that the presumption is essential to
unbiased, neutral proceedings.
Some commenters referred to court decisions that, commenters
stated, ruled for respondents in cases in which recipients had
improperly deemed the respondent responsible for alleged sex
discrimination before following its procedures and offering the
respondent an opportunity to be heard. Other
[[Page 33665]]
commenters viewed the proposed regulations as eliminating the
presumption. Some commenters stated the Department claims to be
preserving the presumption of non-responsibility from the 2020
amendments, but alleged that the presumption would be rendered
meaningless by allowing a recipient to institute temporary supportive
measures that may burden a respondent and restrict a respondent's
access to the education program or activity prior to a determination
that sex discrimination occurred. Some commenters viewed the proposed
regulations as reverting to the standards from OCR's 2011 Dear
Colleague Letter on Sexual Violence, which they characterized as
demanding a presumption of guilty until proven innocent. Some
commenters stated that the presumption of innocence in criminal
proceedings has existed for hundreds of years and is important to due
process.
Some commenters offered differing views on how to support or
confine the presumption. Some commenters suggested that the presumption
of non-responsibility be retained and strengthened, such as by stating
that a person's silence shall not be held against them. Some commenters
suggested the Department go beyond the existing presumption and require
a recipient to explicitly state that the respondent is ``presumed
innocent until proven guilty.'' These commenters referred to due
process, compared student codes of conduct to the criminal system, and
asserted that the lack of a presumption of innocence made the proposed
regulations unconstitutional. Another commenter recommended that the
final regulations make clear that the presumption is not inconsistent
with a recipient's responsibility, such as under Sec. 106.44, to take
action to reduce the risk of future harm in its education program or
activity when there is a reasonable likelihood of such harm and the
remedy does not unreasonably or disproportionately aggrieve either
party.
In contrast, other commenters recommended the removal of the
presumption of non-responsibility and opposed its extension to all
forms of sex discrimination in proposed Sec. 106.45(b)(3). In general,
these commenters argued that mandating a presumption of non-
responsibility makes it less likely that recipients will effectively
create and maintain school environments free from sex discrimination
and ensure that all persons have equal access to educational
opportunities in accordance with Title IX's nondiscrimination mandate.
In particular, commenters raised concerns that the presumption of non-
responsibility required by the 2020 amendments causes confusion for
recipients and interferes with the effective implementation of a
recipient's grievance procedures. These and other commenters asserted
that a formal presumption of non-responsibility is superfluous given
that the proposed regulations would require a recipient to conduct
impartial, unbiased investigations.
Some commenters asserted that the presumption of non-responsibility
should be eliminated because it could be confused with the presumption
of innocence in the criminal law context. They argued that the
presumption in the regulations might give the impression that the
``beyond a reasonable doubt'' standard applies in Title IX proceedings,
when in fact it is prohibited under the regulations. Some commenters
stated that criminal procedure has no place in the educational system.
Other commenters believed that presuming non-responsibility
inappropriately tilts the scales in favor of the respondent. Some
commenters argued that a presumption in favor of the respondent can be
misconstrued as a presumption that the complainant is lying or imply
that a recipient should discount the credibility of survivors.
Similarly, some commenters noted that a presumption of non-
responsibility is not required in any other type of school proceeding,
perpetuates stereotypes that those who report sex-based harassment and
sexual violence are not trustworthy, and is confusing for recipients
and difficult to administer.
Some commenters asserted that the presumption of non-responsibility
has a chilling effect on reporting, adding to the problem that sexual
violence tends to be underreported. Other commenters asserted that the
presumption would be an obstacle to informal or alternative resolution
processes, one example being the restorative justice process, a key
part of which involves respondents who caused harm taking
responsibility for their actions. Some commenters stated that the
presumption of non-responsibility may discourage respondents who wish
to be accountable from participating in such a process, while also
sending a message to complainants that their allegations are presumed
insufficient, which deters aggrieved students from exploring options
including alternative or informal resolution.
In addition, some commenters asserted that removing the presumption
of non-responsibility would improve consistency with other regulatory
requirements the Department has adopted. For example, some commenters
asserted that the presumption would conflict with proposed Sec.
106.8(d)(2)(iii), which would require that recipients train Title IX
Coordinators and investigators on how to avoid prejudgment of the facts
at issue, as well as the requirement in proposed Sec. 106.45(b)(6)
that credibility determinations not be based on a person's status as a
complainant, respondent, or witness. These commenters argued that, to
presume non-responsibility at the outset of the grievance procedures, a
recipient would have to assume that the respondent is credible and the
complainant is not. Additionally, some commenters stated that a
presumption of non-responsibility conflicts with the proposed
requirements in Sec. 106.45(a)(1) and (b)(1) that a recipient treat
the parties equitably and provide equitable resolution of complaints,
because a presumption in favor of any one party is not equitable.
Commenters suggested a variety of amendments to the regulations,
such as requiring the grievance procedures to state, more neutrally,
that a determination about responsibility will not be made until the
end of a fair and equitable investigation or to state both that a
determination about responsibility will not be made until the end of an
investigation and from the outset neither party is presumed to be
telling the truth or lying. Some commenters suggested retaining the
presumption of non-responsibility and adding a presumption that the
complainant made their allegations in good faith; some commenters
reported that their institution's policy includes such a statement.
Discussion: The Department appreciates the variety of views shared
by commenters and has carefully considered the support for and
objections to the presumption of non-responsibility. The Department
understands that some commenters view the presumption as critical to
ensuring a fair process for the respondent. The Department also
understands the importance of ensuring, at the beginning and throughout
the proceedings, that the decisionmaker is not biased in favor of or
against any party. The Department agrees with commenters that giving
complete effect to Title IX requires ensuring equitable treatment for
all parties in, and throughout, Title IX proceedings.
After careful consideration of the comments, the Department has
decided to maintain in the final regulations the presumption that the
respondent is not responsible for the alleged sex
[[Page 33666]]
discrimination until a determination is made at the conclusion of the
grievance procedures. The regulations are meant to support a neutral,
bias-free grievance process in which the burden of proof is on the
recipient and responsibility determinations are only made after the
conclusion of the recipient's grievance procedures. The presumption of
non-responsibility is one component of that process.
The Department is concerned that commenters may have misunderstood
the presumption of non-responsibility to require credibility
determinations based on a person's status as a complainant, respondent,
or witness. That was not the Department's intention in the 2020
amendments, nor is it the Department's intention now. To be clear, the
Department emphasizes that the retention of the presumption of non-
responsibility is not a presumption that the complainant is lying or
that the allegations are not made in good faith. Likewise, given the
Title IX requirement that parties be treated equitably, the presumption
cannot reasonably be understood as a signal that a complainant's
allegations will be presumed non-credible or are inherently suspect.
The Department does not intend to send any such signal, and such an
approach would be inequitable and inconsistent with Title IX.
Instead, as the Department noted in the 2020 amendments, the
presumption is meant to reinforce that the burden of proof is on the
recipient, not on either party, and to reinforce careful application of
the standard of evidence selected by the recipient. 85 FR 30263.
Because the burden of proof is on the recipient only, and not the
complainant or respondent, the presumption that the respondent is not
responsible until the relevant and not otherwise impermissible evidence
has been considered and a determination has been made does not
disadvantage the complainant. Rather, under a recipient's Title IX
grievance procedures, each party may present their own view of the
relevant and not otherwise impermissible evidence, but the burden of
gathering evidence and the burden of proof is on the recipient.
The final regulations include many provisions that aim to ensure
that Title IX proceedings operate free from bias, that investigators
and decisionmakers equitably collect and review evidence, and that
decisionmakers draw conclusions following investigations that comport
with these regulations. For example, final Sec. 106.45(b)(2) requires
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 same is required of any person designated by a
recipient to facilitate an informal resolution process in final Sec.
106.44(k)(4). In addition, final Sec. 106.8(d)(2)(iii) and (d)(3)
require that Title IX Coordinators and their designees, as well as any
employees involved in the implementation of the recipient's grievance
procedures, informal resolution process, or the provision of supportive
measures, receive training on how to serve impartially, including by
avoiding prejudgment of the facts at issue, conflicts of interest, and
bias. These measures to ensure fairness, together with the presumption
of non-responsibility, will increase the confidence of the parties and
public in the outcome of Title IX proceedings, which should help to
improve compliance with these regulations.
That confidence, in turn, will counteract any chilling effect that
the presumption of non-responsibility might otherwise have, as will
other provisions that support complainants and encourage them to report
sex discrimination. For example, under the revised definition of
``complaint'' in Sec. 106.2, complaints may be oral or written. Even
in the absence of a complaint, under Sec. 106.44 a recipient that has
knowledge of conduct that reasonably may constitute sex discrimination
in its education program or activity must respond promptly and
effectively, including by offering and coordinating supportive measures
as appropriate, offering the option of an informal resolution process
if available and appropriate, and by taking other steps to ensure that
sex discrimination does not continue or recur within the recipient's
education program or activity. The presumption of non-responsibility
must not be used by recipients to discourage complainants from
reporting misconduct, accessing supportive measures, or exploring
resolution options, including alternative or informal resolution. The
Department disagrees that these final regulations perpetuate
stereotypes about the trustworthiness of those who report sex-based
harassment and as discussed above, the final regulations include many
provisions that support bias-free grievance procedures. In response to
the assertion that the presumption of non-responsibility is not
required in any other type of school proceeding, the Department notes
that its authority to issue these regulations is derived from Title IX
and that grievance procedures that are not related to sex
discrimination are beyond the scope of this rulemaking. As explained in
the 2020 amendments, the APA does not require the Department to adopt
identical or even similar rules to address discrimination based on sex,
race, or any other basis. See 85 FR 30528-29.
The Department declines to implement commenters' suggestion to add
to the presumption that a respondent's silence must not be held against
them. The presumption that the respondent is not responsible until a
determination is made at the conclusion of the grievance procedures
prevents the decisionmaker from inferring responsibility for the
alleged sex discrimination, including based on a respondent's silence,
before the conclusion of the grievance procedures. In addition, Sec.
106.46(f)(4) separately states that, in sex-based harassment
proceedings at postsecondary institutions involving a student
complainant or student respondent, a decisionmaker must not draw an
inference about whether sex-based harassment occurred based solely on a
party's or witness's refusal to respond to questions deemed relevant
and not impermissible. And the Department declines to require
recipients to import criminal law concepts, such as the Fifth Amendment
right against self-incrimination, into school disciplinary proceedings.
For the same reason, the Department disagrees with commenters who
asserted that there must be a specific presumption that the respondent
is ``innocent until proven guilty'' in order for a respondent to be
afforded due process. That phrasing applies in the criminal system, in
which innocence and guilt for purposes of imposing criminal penalties
are at issue and is not used in civil or administrative proceedings.
The second sentence of final Sec. 106.45(h)(1) regarding the standard
of proof makes the point that if responsibility is not established by
the evidence in accordance with the applicable standard of proof, the
recipient must find that the respondent is not responsible. This is
consistent with the allocation of the burden of proof in civil and
administrative proceedings and further reminds recipients that the
burden of proof is on the recipient and that a respondent may only be
found responsible after a full and fair process. For more explanation
of the recipient's burden of proof, see the discussions of Sec.
106.45(f)(1) and (h)(1).
In addition, the Department does not agree that requiring a
presumption of non-responsibility will be confused
[[Page 33667]]
with allowing the application of a ``beyond a reasonable doubt''
standard of proof. As the Department explained in the July 2022 NPRM
and explains further in the discussion of Sec. 106.45(h)(1), the
``beyond a reasonable doubt'' standard of proof is limited to the
criminal context and is never appropriate in a recipient's Title IX
proceedings. 87 FR 41486.
The Department does not agree with commenters that a presumption of
non-responsibility will deter respondents who are otherwise motivated
to participate in informal or alternative resolution processes from
doing so. Commenters explained, for example, that in the restorative
justice process respondents who caused harm are typically required to
take responsibility for their actions, which can lead to more
appropriate interventions and better ensure that the needs of parties
are met. Respondents who wish to take responsibility for their actions
and recognize the benefits of informal resolution are not likely to be
deterred from participating in such a process just because the
recipient's grievance procedures include a presumption that the
respondent is not responsible until a determination is made at the
conclusion of the grievance procedures.
The Department's changes to final Sec. 106.44(g) render moot some
commenters' argument that the presumption of non-responsibility is
undermined by allowing a recipient to institute temporary supportive
measures that may burden a respondent. The Department has removed the
reference to temporary measures that burden a respondent from the
definition of ``supportive measures'' to avoid any suggestion that
respondents and complainants are subject to different treatment in the
implementation of supportive measures. Final Sec. 106.44(g)(2)
clarifies that recipients are permitted to provide supportive measures
to a complainant or a respondent as long as such supportive measures
are not unreasonably burdensome, are not provided for punitive or
disciplinary reasons, and are designed to protect the safety of the
parties or the recipient's educational environment or to 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). Additionally, under Sec. 106.44(g)(4),
the recipient must provide the parties a timely opportunity to
challenge the provision of supportive measures. The neutrality and lack
of bias required by the final regulations, and the presumption that the
respondent is not responsible for the alleged sex discrimination, are
not rendered meaningless by provisions allowing a recipient to take
non-punitive and reasonable steps necessary to protect the safety of
the parties or the recipient's educational environment. For more
information regarding the limitations on recipients and their ability
to take actions to prevent the risk of future harm in their education
programs or activities, see the discussions of Sec. Sec. 106.44(g),
(h), and (i).
The Department also notes, as it did in the July 2022 NPRM, that
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, but instead alleges the recipient violated Title
IX. See 87 FR 41468. Consistent with final Sec. 106.45(a)(1), ``[w]hen
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.'' Accordingly, the Department recognizes that
some provisions in Sec. 106.45, like Sec. 106.45(b)(3), will not
apply. See discussion of Sec. 106.45(a)(1). In those instances, the
Department will still not presume that a recipient accused of sex
discrimination through its policy or practice operated its education
program or activity in a discriminatory manner until a determination is
made at the conclusion of the recipient's grievance procedures under
Sec. 106.45.
The Department made minor clarifying edits to this provision,
replacing the word ``conduct'' with ``sex discrimination'' for
precision. Additionally, the Department removed the phrase ``whether
sex discrimination occurred'' from the regulatory text because it is
clear from the context and reduces repetitiveness of the sentence.
Changes: The Department changed the word ``conduct'' to ``sex
discrimination'' for accuracy and removed the phrase ``whether sex
discrimination occurred'' to streamline the provision.
6. Sections 106.45(b)(4) and 106.46(e)(5) Timeframes
Comments: Some commenters supported proposed Sec. 106.45(b)(4)
because it would require a recipient to establish grievance procedures
that are prompt and equitable and would allow a recipient to respond
quickly to Title IX complaints to restore access to a safe educational
and work environment, facilitate faster and less traumatic grievance
procedures, avoid undue delay, reduce administrative burden, ensure
fairness, and keep individuals accountable for discriminatory conduct.
Further, some commenters supported the removal of strict timeframes
under the 2020 amendments and providing recipients greater flexibility.
Commenters observed that this flexibility would allow a recipient to
delay grievance procedures due to concurrent law enforcement
activities, assess good cause on a case-by-case basis, and would
benefit elementary school and secondary school recipients.
Other commenters opposed the timeframes in the proposed
regulations. One commenter stated that, even with the requirement for
prompt timeframes, the proposed regulations have too many steps that
would take at least 60 days to follow. One commenter opposed changes to
the language on timeframes at Sec. 106.45(b)(1)(v) in the 2020
amendments because, the commenter stated, this provision was upheld in
Victim Rights Law Center, 552 F. Supp. 3d 104, and it accounts for the
neurobiology of trauma.
Other commenters opposed the proposed regulations' removal of
specific timeframes because they thought the lack of specific maximum
timeframes for completing grievance procedures would or might lead to,
for example, excessive delay; lack of transparency or accountability;
chilled reporting or participation; and feelings of betrayal or
anxiety. Some commenters offered examples of individuals who reported
that they had experienced lengthy grievance procedures that impacted
their educational experience. One commenter argued that the Department
failed to offer data in its previous rulemaking to support its
assertion in the 2020 amendments that the prior 60-day guideline
sacrificed accuracy for speed.
Some commenters requested clear timeframes and benchmarks within
the grievance procedures. Several commenters requested the
reinstatement of the 60-day guideline provided in the 2011 Dear
Colleague Letter on Sexual Violence. These commenters raised concerns
that recipients would deliberately delay proceedings, and requested
that the final regulations state that deliberate delays by a recipient
in responding to complaints of sex-based harassment could constitute a
form of institutional retaliation. One commenter suggested the
Department issue guidance encouraging recipients to finish their
investigations and make a determination within 60 calendar days.
Another commenter suggested that the Department define ``reasonably
prompt'' timeframes as approximately 60 calendar days but permit a
recipient to
[[Page 33668]]
extend the investigation period in certain situations. Other commenters
suggested that the final regulations establish specific timeframes for
certain stages of the process or require recipients to set timeframes
for stages and keep the parties updated.
In contrast, some commenters requested that the Department define
``prompt,'' but did not specify a recommended timeframe. One commenter
suggested that the final regulations state that a reasonably prompt
timeframe is less than one full academic year and ideally one semester.
Some commenters requested clarity as to whether the regulations require
recipients to include timeframes for each major stage or for the
overall process. One commenter requested that the final regulations
give clearer guidance on the length of the grievance procedures and
under what conditions an extension should be granted. Several
commenters suggested modifications to the examples of the major stages
of a grievance procedure in proposed Sec. 106.45(b)(4).
Other commenters requested that the Department define ``good
cause'' and retain the examples of good cause from the 2020 amendments,
state that good cause exists only in specific cases, or clarify what
constitutes a reasonable delay. One commenter requested the Department
issue separate guidance on what constitutes ``good cause.'' One
commenter requested that the Department clarify that recipients should
use good cause rather than a rigid application of timeframe procedures
to achieve reasonable fairness. In addition, some commenters requested
that proposed Sec. 106.45(b)(4) be modified to require ``written''
notice to the parties that includes the reason for the delay on the
premise that this requirement would facilitate Clery Act compliance.
And some commenters asked the Department to require that advisors'
schedules be considered in determining timeframes and scheduling. One
commenter requested the Department remove the requirement to set a
timeframe for the evaluation stage, asserting that pressuring
complainants on evaluation deadlines would lead to a stressful process
for complainants and could produce a chilling effect.
In addition, other commenters recommended various modifications to
proposed Sec. 106.45(b)(4) and Sec. 106.46(e)(5) related to law
enforcement proceedings. One commenter suggested that if law
enforcement proceedings occur concurrent with Title IX grievance
procedures, recipients should not be allowed to draw adverse inferences
from a respondent's silence during grievance procedures.
Finally, other commenters proposed a statute of limitations for
filing a complaint--for example, a one-year statute of limitations that
could be tolled if the parties elect to proceed with an informal
resolution process. Some commenters argued that a limitations period
would ensure fairness and due process, especially when the respondent
is no longer participating as a student in the recipient's education
program or activity.
Discussion: The Department acknowledges commenters' support for
Sec. Sec. 106.45(b)(4) and 106.46(e)(5) and notes that the final
regulations will continue to require that a recipient establish
grievance procedures that are prompt and equitable. The Department
shares the goals of ensuring that recipients promptly respond to
complaints of sex discrimination and restore access to a safe
educational and work environment, that the timing of grievance
procedures be fair and transparent, and that students feel safe in
their school environments. The Department also acknowledges commenters'
support for the flexibility provided in Sec. 106.45(b)(4) and agrees
that allowing recipients the ability to set reasonably prompt
timeframes, as well as allowing reasonable extensions of such
timeframes for good cause, will allow recipients to better meet the
needs of their educational communities.
The Department disagrees that the requirement for prompt timeframes
will result in grievance procedures that are too lengthy. The
Department maintains that the grievance procedures in the final
regulations appropriately balance the need for the prompt resolution of
complaints; thorough and accurate investigations; and a fair process
for all parties. The Department also notes that, to the extent that
some commenters preferred the language in the current regulations
because it has been upheld by a Federal court, these final regulations
do not significantly change the requirements for timeframes set forth
in the 2020 amendments. As the Department stated in the July 2022 NPRM,
the Department continues to adhere to the rationale of Sec.
106.45(b)(1)(v) in the 2020 amendments and has adopted only minor
revisions to simplify the regulatory language and better align it with
other sections of the final regulations. See 87 FR 41468.
The Department disagrees with commenters' suggestions that these
regulations allow a recipient to conduct grievance procedures without
specific timeframes, allow for indefinite delays by a recipient, and
provide no guarantee of transparency or accountability. Section
106.45(b)(4) requires a recipient to establish reasonably prompt
timeframes for the major stages of the grievance procedures, including,
for example, evaluation, investigation, determination, and appeal. Any
extensions of these established timeframes must be reasonable and for
good cause, and the recipient must notify the parties of the reason for
the extension. Section 106.46(e)(5) likewise requires recipients to
provide ``reasonable extension[s] of timeframes on a case-by-case basis
for good cause with written notice to the parties that includes the
reason for the delay.'' The requirements of Sec. Sec. 106.45(b)(4) and
106.46(e)(5) thus allow for neither indefinite grievance procedures nor
for a recipient to hide the nature of its required timeframes or
reasons for an extension.
The Department agrees with commenters' assertions that timeframes
are important for setting parties' expectations about the grievance
procedures and facilitating participation, but maintains that
recipients should have the flexibility to establish specific reasonably
prompt timeframes for the major stages of their grievance procedures.
The Department also agrees with commenters that excessive or lengthy
delays in grievance procedures can have a negative impact on parties
and their educational experience. To address this concern, the
Department's regulations require a recipient to set, and abide by,
reasonably prompt timeframes and only allow for reasonable extensions
for good cause. The Department maintains that conclusion of the
grievance procedures must be reasonably prompt because parties should
not have to wait longer than necessary to know the resolution of a sex
discrimination complaint, and prompt resolution of such complaints is
necessary to further Title IX's nondiscrimination mandate. The
Department notes that supportive measures designed to protect safety
are available during the pendency of the grievance procedures, and,
under Sec. 106.44(h), recipients may remove a respondent on an
emergency basis, when appropriate, without awaiting the conclusion of a
grievance procedure.
The Department acknowledges that withdrawn Department guidance
referred to a 60-day timeframe for sexual harassment complaints. Each
recipient is in the best position to balance promptness with equity,
including fairness and accuracy, based on the recipient's unique
environment and experience, and the Department
[[Page 33669]]
therefore declines to set a specific minimum or maximum timeframe for
recipients or to require that recipients use business or calendar days.
Recipients that determine 60 days represents a reasonable timeframe to
conclude grievance procedures have discretion to include that timeframe
in their Title IX grievance procedures under the final regulations,
while other recipients may determine they can conclude a grievance
procedure in a shorter or longer period of time. With respect to the
commenter's assertion that the Department did not provide data in its
previous rulemaking to show that the 60-day timeframe compromised
accuracy and fairness, the Department refers to the preamble to the
2020 amendments which addresses this concern and identifies comments
made on behalf of complainants and respondents about grievance
procedures often taking too long, and comments made on behalf of
recipients expressing concern that fair grievance procedures could take
more than 60 days in many cases. See 85 FR 30270.
The Department declines to adopt a statute of limitations for the
filing of a sex discrimination complaint. Applying a statute of
limitations would be unfair to complainants because, as many commenters
have noted, for a variety of reasons complainants sometimes wait before
pursuing a grievance procedure in the aftermath of sex discrimination.
The final regulations safeguard the fundamental fairness and
reliability of Title IX grievance procedures without the need to impose
a statute of limitations. Additionally, as the Department discussed in
the 2020 amendments, Title IX obligates recipients to operate education
programs and activities free from sex discrimination; imposing a time
limit on a complainant's decision to file a complaint would not support
Title IX's nondiscrimination mandate. 85 FR 30127.
The Department appreciates commenters' suggestions for
modifications to the examples of the major stages of a grievance
procedure identified in Sec. 106.45(b)(4), but declines to make such
modifications. Beyond the stages identified by the Department--
evaluation, investigation, determination, and appeal--recipients have
the flexibility to identify additional stages for which they would like
to provide timeframes for resolution if they believe this would help
parties understand the approximate length of each stage of the
grievance procedures. While the Department appreciates commenters'
concern about setting a timeframe for the evaluation process, the
Department maintains that the recipient's initial evaluation of whether
to dismiss or investigate a complaint of sex discrimination constitutes
a major stage of a recipient's grievance procedure, and that for
promptness and transparency the parties should be aware of the
timeframe governing when such an evaluation will be completed. To
further clarify the examples of major stages it has provided in Sec.
106.45(b)(4), the Department has slightly modified the description of
the evaluation stage, from ``the recipient's determination of whether
to dismiss or investigate a complaint of sex discrimination'' to ``the
recipient's decision whether to dismiss or investigate a complaint of
sex discrimination,'' to avoid multiple uses of the term
``determination'' and prevent confusion.
The Department acknowledges commenters' requests that the
regulations require a delay of Title IX grievance procedures for
concurrent law enforcement proceedings or, alternatively, prohibit more
than a temporary delay due to a concurrent law enforcement proceeding.
The Department acknowledges that the criminal justice system and Title
IX grievance procedures serve distinct purposes but may sometimes
overlap with respect to allegations of conduct that constitutes sex
discrimination under Title IX and criminal offenses under State or
other laws. The Department declines to require a recipient to delay its
grievance procedures when there is an ongoing concurrent law
enforcement proceeding and likewise declines to specifically prohibit a
recipient from delaying a grievance proceeding due to a concurrent law
enforcement proceeding. A variety of situations may necessitate the
reasonable extension of timeframes on a case-by-case basis for good
cause, including the possibility of a concurrent law enforcement
proceeding. On the other hand, a concurrent law enforcement proceeding
will not always constitute good cause for a delay, and the Department
encourages recipients whenever possible to apply their grievance
procedures in a manner that avoids the need for an extension.
The Department notes that, to the extent a reasonable extension of
timeframes is implemented for good cause, a recipient must not delay
the provision of supportive measures because of a concurrent law
enforcement proceeding; a recipient must continue to offer and provide
supportive measures, as appropriate, to restore or preserve a party's
access to the recipient's education program or activity, or to provide
support during the recipient's grievance procedures or during the
informal resolution process. See Sec. Sec. 106.44(f)(1)(ii), (g). A
recipient is likewise required to operate its education program or
activity free from discrimination at all times and may therefore need
to take action as permitted by these final regulations during the
pendency of law enforcement proceedings to ensure students' access to
education is not limited or denied based on sex. Concerning the
commenter's request regarding adverse inferences based on a
respondent's silence when a request for extension due to concurrent law
enforcement proceedings is denied, the Department notes that Sec.
106.46(f)(4) prohibits a 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 deemed relevant and not
impermissible. For further discussion of this provision and its impact,
see the discussion of Sec. 106.46(f)(4). The Department appreciates
commenters' request that the Department explicitly identify deliberate
delays in grievance procedures as a form of institutional retaliation.
While the Department acknowledges that an intentional delay could
constitute retaliation if it meets the standard in the definition of
``retaliation'' in Sec. 106.2, including that the delay was imposed
for a retaliatory motive, the Department declines to specifically
identify additional types of retaliation in Sec. 106.71 for the
reasons discussed in that section.
While the Department appreciates that commenters would like the
Department to define terms such as ``prompt,'' ``good cause,'' and
``reasonable'' delays, the Department declines to do so because the
meaning of these terms depends on specific contexts. The Department
declines to assign a particular timeframe to the terms because
recipients should retain flexibility to designate appropriate
timeframes, and what is ``prompt'' or ``reasonable'' is a decision that
must be made in the context of a recipient's obligation to provide an
education program or activity free from sex discrimination. As
discussed in the July 2022 NPRM, the Department maintains that good
cause for an extension of a timeframe may include, for example,
reasonable extensions of time to accommodate the absence of a party, a
party's advisor, or a witness; however, the Department intends to grant
flexibility, based on recipients' experience and familiarity with their
cases, to determine whether particular circumstances constitute good
cause
[[Page 33670]]
that could justify extending a timeframe. 87 FR 41468. When evaluating
extensions for good cause, the Department reiterates that recipient
considerations include whether there may be ways to address such
circumstances that avoid the need for an extension, such as allowing a
witness to participate via videoconference or requiring a party to
choose an advisor who has sufficient availability under the recipient's
existing timeframes. The Department notes that recipients should be
able to provide reasonable modifications for those with disabilities
and language assistance for those with limited proficiency in English
within the established timeframes and without need for extension.
Anyone who believes that a recipient has failed to comply with
reasonably prompt timeframes set forth in its grievance procedures may
file a complaint with OCR.
As the Department explained in the July 2022 NPRM, the Department
has removed specific examples of good cause because the Department is
concerned that their inclusion may have inadvertently suggested to
recipients that extensions were mandatory in each of those situations,
which may have slowed down overall investigation and resolution of
complaints. 87 FR 41468. The Department maintains that good cause may
include considerations such as the absence of a party but declines to
include specific examples of good cause in order to clarify that good
cause should be considered on a case-by-case basis. 87 FR 41468. The
Department appreciates commenters' concerns about aligning Sec.
106.45(b)(4) with the Clery Act by requiring written notice of the
reason for any delay. The Department declines to require written notice
in Sec. 106.45(b)(4) because this provision also applies to recipients
that are not subject to the Clery Act, including elementary schools and
secondary schools, but notes that Sec. 106.46(e)(5), which applies to
postsecondary institutions subject to the Clery Act, requires written
notice of a reasonable extension of timeframes for good cause.
Changes: The Department has revised ``the recipient's determination
of whether to dismiss or investigate a complaint of sex
discrimination'' in Sec. 106.45(b)(4) to ``the recipient's decision
whether to dismiss or investigate a complaint of sex discrimination.''
7. Section 106.45(b)(5) Reasonable Limitations on Sharing of
Information
Privacy Protections Generally
Comments: Commenters expressed support for proposed Sec.
106.45(b)(5) for a variety of reasons, including because it promotes
fairness and consistency for all parties, addresses privacy concerns
and chilling effects raised by the 2020 amendments, prevents
unnecessary disclosure of personal information, balances privacy
interests (especially of young students) with the parties' need to
represent themselves, acknowledges that investigations must be
conducted in a sensitive and confidential way, and provides protection
for parties against retaliation. Some commenters shared that the 2020
amendments' prohibition on restricting the parties' ability to discuss
the allegations exposes students to retaliation and harassment, leads
to a chilling effect, can exacerbate a hostile environment on campus,
and negatively affects the reliability of witness testimony.
Some commenters expressed support for Sec. 106.45(b)(5), citing
the importance for certain parties, such as students with disabilities
or young students, of being able to access additional support to
participate in a recipient's grievance procedures. Some commenters
asked the Department to allow elementary schools and secondary schools
to decide what constitutes reasonable steps to protect privacy in a
particular case. Some commenters questioned whether recipients could
restrict the parties' ability to engage in the speech described in
Sec. 106.45(b)(5) for reasons other than protecting privacy. The
commenters urged the Department to modify Sec. 106.45(b)(5) to
prohibit recipients from interfering with these types of speech,
regardless of whether the recipient is taking steps to protect privacy
or for another reason.
Some commenters recommended changes to the limitation in proposed
Sec. 106.45(b)(5) that the recipient's reasonable steps to protect
privacy must not restrict the parties' ability to consult with a family
member, confidential resource, or advisor, such as using ``discuss''
rather than ``consult with'' and being less prescriptive in listing the
individuals with whom parties can consult.
Some commenters asked for clarification regarding who constitutes a
``confidential resource'' or ``advisor'' for purposes of proposed Sec.
106.45(b)(5). Some commenters urged defining these terms as broadly as
possible, or to permit consultation with a broader range of sources,
such as police, prosecutors, and judges. Some commenters urged
restrictions on a recipient's ability to volunteer information to law
enforcement. One commenter suggested clarifying that a party does not
have a right to communicate with a family member, confidential
resource, or advisor during a hearing or meeting.
Some commenters asked the Department to replace the phrases
``prepare for a hearing, if one is offered'' and ``otherwise defend
their interests'' with the phrase ``otherwise prepare for or
participate in the grievance process'' based on a concern that
defending their interest is a broad phrase that parties could use to
justify widespread disclosures. Another commenter asked whether
``defend their interests'' means that a party would need to be
challenged by someone else or whether they could proactively speak
about the allegations.
Some commenters also asked the Department to clarify whether there
are any differences between the privacy requirements in Sec. Sec.
106.45(b)(5) and 106.46(e)(6)(iii). Other commenters asked whether
Sec. 106.45(b)(5) conflicts with the retaliation provision in proposed
Sec. 106.71.
Discussion: The Department acknowledges commenters' support of
Sec. 106.45(b)(5). The Department continues to believe that Sec.
106.45(b)(5) appropriately addresses concerns about chilling effects on
participation in the grievance procedures, peer retaliation, and the
integrity of the grievance procedures associated with widespread
disclosures.
Section 106.45(b)(5) requires a recipient to take reasonable steps
to protect the parties' and witnesses' privacy during the pendency of a
recipient's grievance procedures, provided that these steps do not
restrict the parties' ability to: obtain and present evidence,
including by speaking to witnesses, subject to Sec. 106.71; consult
with family members, confidential resources, or advisors; or otherwise
prepare for or participate in the grievance procedures. The steps that
are reasonable to protect privacy may vary depending on the
circumstances, and thus a recipient must consider the circumstances of
a particular complaint when determining what steps the recipient must
take to protect privacy, which includes consideration of whether a
particular step is reasonable and whether it impermissibly restricts a
party's ability to gather evidence, consult with certain individuals,
or prepare for or participate in the grievance procedures.
Nevertheless, the Department emphasizes that any steps that infringe on
constitutional rights or
[[Page 33671]]
otherwise undermine due process are inherently unreasonable, and such
steps do not qualify as ``reasonable steps'' under Sec. 106.45(b)(5).
Cf. 34 CFR 106.6(d).
In response to commenters' concern that Sec. 106.45(b)(5) permits
a recipient to restrict the parties' ability to gather evidence,
consult with certain individuals, or prepare for or participate in the
grievance procedures as long as the recipient did not impose these
restrictions as part of its reasonable steps to protect privacy, the
Department clarifies that Sec. 106.45(b)(5) prohibits a recipient from
taking reasonable steps for the purpose of protecting privacy that
restrict the parties' ability to gather evidence, consult with certain
individuals, or prepare for or participate in the grievance procedures.
Although Sec. 106.45(b)(5) does not apply to steps that a recipient
takes for purposes other than privacy protection, the Department notes
that other provisions in these final regulations provide additional
protection for the parties--e.g., Sec. 106.45(f)(2) addresses the
opportunity to present witnesses and evidence, Sec. 106.46(e)(2)
addresses the opportunity to be accompanied by a party's advisor in
cases of sex-based harassment involving a student party at
postsecondary institutions, and Sec. 106.6(g) addresses participation
by parents, guardians, and authorized legal representatives.
The Department declines the commenter's request to change ``consult
with'' to ``discuss'' in Sec. 106.45(b)(5) to prevent parties from
communicating with family members, confidential resources, or advisors
during a hearing or meeting. The Department notes that other provisions
in these final regulations, such as Sec. Sec. 106.6(g) and
106.46(e)(2) and (3), may affect when and how a party may communicate
with these individuals in certain proceedings.
The Department also declines the suggestions to broadly define or
be less prescriptive as to the individuals listed in Sec.
106.45(b)(5). The Department maintains that this list sufficiently
protects the parties' ability to confide in other individuals during
the grievance procedures, and nothing in Sec. 106.45(b)(5) prevents a
recipient from allowing the parties to consult with individuals beyond
those listed in the provision.
Regarding commenters' questions about communications with law
enforcement and the judicial system, the Department notes that the
Title IX regulations do not impose limitations on the parties' ability
to speak with law enforcement or to speak at judicial proceedings. The
Department notes a recipient must be mindful of the requirements of
Sec. 106.44(j) when considering whether to disclose information to law
enforcement or to the judicial system.
The Department wishes to clarify that ``confidential resources,''
as used in this provision, is not synonymous with ``confidential
employee,'' as defined in Sec. 106.2, although certain individuals may
qualify as both. Unlike a confidential employee, a confidential
resource does not need to be an employee of the recipient. The
confidential resource must, however, have a confidential status under a
Federal, State, or local law, or by virtue of their profession. Thus, a
teacher or friend will generally not qualify, whereas a mental health
counselor or a community-based rape crisis counselor will generally
qualify.
The Department clarifies that ``advisors,'' as used in Sec.
106.45(b)(5), refers to any individual who is acting as an advisor to
the party for purposes of the grievance procedures. This includes but
is not limited to the advisor of the party's choice referenced
throughout Sec. 106.46.
In response to concerns that ``defend their interests'' is an
overly broad phrase that could be used to justify widespread
disclosures, the Department is modifying Sec. 106.45(b)(5) by
replacing the phrases ``prepare for a hearing, if one is offered'' and
``otherwise defend their interests'' with the phrase ``otherwise
prepare for or participate in the grievance procedures.'' The
Department also notes that this change avoids the concern expressed by
one commenter as to whether a party would need to be challenged by
someone else to be considered as defense of their interest.
Commenters asked about the differences between Sec. Sec.
106.45(b)(5) and 106.46(e)(6)(iii). Section 106.45(b)(5) requires a
recipient to take reasonable steps to protect the privacy of the
parties and witnesses throughout the grievance procedures, whereas
Sec. 106.46(e)(6)(iii) and the corresponding provision at Sec.
106.45(f)(4)(iii) require a recipient to prevent and address parties'
unauthorized disclosure of material obtained solely through the
grievance procedures. When providing the parties with an equal
opportunity to access the relevant and not otherwise impermissible
evidence under Sec. Sec. 106.45(f)(4)(i) and 106.46(e)(6)(i), a
recipient must take reasonable steps under Sec. Sec. 106.45(f)(4)(iii)
and 106.46(e)(6)(iii) to prevent and address unauthorized disclosures.
The Department recognizes that there is some overlap in the three
provisions requiring privacy protections (i.e., Sec. Sec. 106.45(b)(5)
and (f)(4)(iii) and 106.46(e)(6)(iii)), and certain steps that a
recipient takes to protect privacy may further the requirements of more
than one provision. However, the Department does not agree that these
provisions conflict, or that their differences would create
difficulties for recipients.
The Department appreciates commenters' questions about the
interaction between Sec. 106.45(b)(5) and the retaliation provision.
Although the factual scenarios posed by the commenters would require an
analysis of the specific facts and circumstances, the Department
emphasizes that a recipient must comply with the requirements of both
Sec. Sec. 106.45(b)(5) and 106.71. Accordingly, a party's right to
speak to witnesses is subject to the requirement in Sec. 106.71 that a
recipient prohibit retaliation, which is defined in Sec. 106.2 as
``intimidation, threats, coercion, or discrimination'' against any
individual, including witnesses, for the purpose of interfering with
any right or privilege under Title IX or the regulations or because
that individual participated in any way in the grievance procedures.
Changes: The Department has made a technical edit to Sec.
106.45(b)(5) to change ``[t]ake'' to ``[r]equire the recipient to
take'' for clarity. The Department has also changed ``a family member,
confidential resource, or advisor'' to ``their family members,
confidential resources, or advisors.'' The Department has also replaced
the phrases ``prepare for a hearing, if one is offered'' and
``otherwise defend their interests'' with the single phrase ``otherwise
prepare for or participate in the grievance procedures.''
More Stringent Privacy Protections
Comments: Some commenters raised concerns that proposed Sec.
106.45(b)(5) does not adequately protect the privacy or identity of the
parties or witnesses, which could have a chilling effect and raise
concerns of retaliation, especially for members of the LGBTQI+
community. Some commenters asked for clear guidelines to protect the
parties' privacy during the early stages of an investigation, during
the process of providing remedies or accommodations, and after the
conclusion of the grievance procedures.
Some commenters expressed concern that proposed Sec. 106.45(b)(5)
allows parties to independently investigate allegations, such as by
speaking with witnesses to influence whether the witnesses would
participate in a grievance procedure and what they
[[Page 33672]]
might say. Commenters also noted that allowing parties to speak to
witnesses increases the risk of retaliation.
Commenters also inquired about when a recipient is permitted to
redact information, including witness names, when disclosing evidence.
Other commenters asked the Department to prohibit the use of
nondisclosure agreements in Title IX grievance procedures to dissuade
recipients from conditioning supportive measures or the initiation of
grievance procedures on parties or their advisors signing nondisclosure
agreements.
Some commenters expressed overarching concerns about privacy
without explicitly referencing Sec. 106.45(b)(5). One commenter stated
that recipients and their employees have an ethical duty of
confidentiality and should be trained on privacy laws and how to
protect sensitive data. Another commenter seemed to suggest that the
regulations should restrict Freedom of Information Act (FOIA) requests
for medical information, consistent with the Fourteenth Amendment,
FERPA, and HIPAA.
Commenters also asked for clarification about when a recipient may
include a statement regarding the privacy rights of the parties and how
to ensure privacy while using language assistance services.
Discussion: The Department aims to prevent the harms associated
with widespread disclosure by requiring a recipient to take reasonable
steps to protect the privacy of the parties and witnesses. The
disclosure requirements and the right to present evidence under these
final regulations are necessary to ensure the integrity and fairness of
the grievance procedures, as explained in greater detail in the
discussions of Sec. Sec. 106.45(f)(2) and (4) and 106.46(e)(6). The
Department maintains that these final regulations strike an appropriate
balance between ensuring that parties are able to prepare and
participate in the grievance procedures, while requiring privacy
protections and prohibiting retaliation to address fears related to
overly broad disclosures. The Department also notes that these
regulations must not infringe on any federally guaranteed
constitutional rights.
In response to commenters' concerns about witness intimidation and
improper influence of witnesses, the Department reiterates that parties
are prohibited under Sec. 106.71 from intimidating a witness because
the witness has participated in the grievance procedures. The
Department further notes that Sec. 106.45(g), and if applicable Sec.
106.46(f), require a recipient to assess the credibility of parties and
witnesses. Nothing in these regulations prohibits a recipient from
requiring its investigator to speak to witnesses prior to speaking with
the parties in order to minimize the risk that their statements will be
improperly influenced.
Commenters inquired about a recipient's ability to redact
materials. The Title IX regulations require a recipient to make certain
disclosures of personally identifiable information to the parties,
including the requirements in Sec. Sec. 106.45(f)(4) and 106.46(e)(6)
to provide the parties with an equal opportunity to access the evidence
that is relevant to the allegations of sex discrimination and not
otherwise impermissible. A recipient may redact information that is not
relevant to the allegations but that is contained within documents or
evidence that are relevant to the allegations. A recipient must redact
(or otherwise refrain from disclosing) information that is
impermissible under Sec. 106.45(b)(7)--such as information protected
by a legally recognized privilege or provided to a confidential
employee; records made by a physician or psychologist in connection
with the treatment of a party or witness; or evidence about the
complainant's sexual interests or prior sexual conduct, with narrow
exceptions--even if the information is contained within documents or
evidence that are relevant to the allegations.
Under these final regulations, however, a recipient is not
permitted to redact information or evidence that is relevant to the
allegations of sex discrimination and not otherwise impermissible
because such redaction infringes on the right of the parties (and their
advisors, for complaints under Sec. 106.46) to receive access to the
relevant and not otherwise impermissible evidence, as well as on the
parties' due process rights. The Department has previously recognized
situations in which FERPA permits the unredacted disclosure to a parent
(or eligible student) of education records related to disciplinary
proceedings when the information cannot be segregated and redacted
without destroying its meaning.\48\ To the extent that FERPA would
require the withholding or redaction of personally identifiable
information in education records, for purposes of Title IX the
Department takes the position that principles of due process and
fundamental fairness require the disclosure of unredacted evidence and
information to the parties that is relevant to the allegation and not
otherwise impermissible. Accordingly, the constitutional override
justifies this disclosure, even if the disclosure is not consistent
with FERPA. To the extent the constitutional override does not apply,
the GEPA override also requires a recipient to fully comply with the
requirements of the Title IX regulations, even if those requirements
are not consistent with FERPA's protection of education records. See
the section on Sec. 106.6(e) for discussion of the constitutional,
GEPA, and FERPA overrides. For additional discussion of redactions
within Title IX grievance procedures, see the discussion of Sec. Sec.
106.45(f)(4) and 106.46(e)(6).
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\48\ Under FERPA's definition of education records, ``a parent
(or eligible student) has a right to inspect and review any witness
statement that is directly related to the student, even if that
statement contains information that is also directly related to
another student, if the information cannot be segregated and
redacted without destroying its meaning.'' 73 FR 74832-33; see also
Letter from Michael Hawes, Director of Student Privacy Policy, U.S.
Dep't. of Educ., Office of Mgmt., to Timothy S. Wachter, Knox
McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017), https://studentprivacy.ed.gov/resources/letter-wachter-regarding-surveillance-video-multiple-students (requiring a school district to
provide a video of a hazing incident to the parents of a disciplined
student because ``[i]t does not appear to us that the District can
segregate or redact the video without destroying its meaning'').
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The final regulations neither require nor prohibit nondisclosure
agreements or confidentiality agreements, as nondisclosure agreements
fall within the recipient's discretion to determine which reasonable
steps to take to protect privacy based on the circumstances. The
Department notes that if a recipient requires such an agreement, it
must comply with all of the requirements in the final regulations,
including Sec. 106.45(b)(5), and any applicable laws.\49\ The
Department clarifies that although Sec. 106.45(b)(5) requires a
recipient to take reasonable steps to protect the privacy of parties
and witnesses during the pendency of a recipient's grievance
procedures, such steps may not restrict the ability of the parties to
obtain and present evidence, to speak with certain individuals, or to
participate in the grievance procedures. In addition, depending on the
facts and circumstances, a nondisclosure agreement, especially one that
is overly broad, may not satisfy Sec. 106.45(b)(5)'s requirement that
any steps a recipient takes to protect the privacy of parties and
witnesses must be reasonable.
[[Page 33673]]
Sections 106.45(f)(4)(iii) and 106.46(e)(6)(iii) similarly require that
any steps a recipient takes to prevent and address the parties' and
their advisors' unauthorized disclosure of information obtained solely
through the grievance procedures must be reasonable. In response to
commenters, the Department also clarifies that Sec. 106.44(g) requires
a recipient to offer and coordinate supportive measures as appropriate,
and recipients may not condition the offer or coordination of
supportive measures or the initiation of grievance procedures on a
party signing a nondisclosure or other confidentiality agreement.
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\49\ The Department notes that the Speak Out Act, 42 U.S.C.
19403, generally prohibits the judicial enforceability of a
nondisclosure clause or non-disparagement clause before a dispute
arises involving a sexual assault or sexual harassment alleged to be
in in violation of Federal, State, or tribal law.
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Due to the fact-specific nature of these issues, the Department
declines to provide more specific guidelines for protecting privacy,
including guidelines for sanctioning employees who violate a student's
privacy. The Department maintains that a recipient is well positioned
to determine reasonable steps to protect privacy based on the
particular circumstances, including but not limited to the nature of
the allegations and the stage of the grievance procedures, within the
parameters set forth by Sec. 106.45(b)(5) and other provisions. The
Department revised final Sec. 106.44(j) to prohibit the disclosure of
personally identifiable information obtained while carrying out a
recipient's Title IX obligations, with some exceptions. The
circumstances under which such information may be disclosed are
explained more fully in the discussion of Sec. 106.44(j).
The Department also declines to extend the requirement for the
recipient to take reasonable steps to protect the privacy of parties
and witnesses beyond the conclusion of the grievance procedures. After
the grievance procedures have concluded, the disclosure of information
presents little or no threat to the fairness and integrity of the
investigation and outcome of a particular complaint. Although Sec.
106.45(b)(5) does not apply after the conclusion of the grievance
procedures, Title IX continues to prohibit harassment, including
harassment of a party or witness after conclusion of grievance
procedures, and retaliation under Sec. 106.71. In addition, Sec.
106.44(j) prohibits a recipient from disclosing personally identifiable
information obtained while carrying out its Title IX obligations, with
some exceptions, and continues to apply after the conclusion of the
grievance procedures. Other privacy laws, such as FERPA, may also be
applicable.
Regarding the suggestion to require privacy-related training, the
Department notes that Sec. 106.8(d)(2)(ii) requires recipients to
ensure that employees and individuals who have any role in implementing
the Title IX regulations receive training on the recipient's grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, to the
extent related to their responsibilities. As noted above, a recipient
is obligated to take reasonable steps to protect privacy under
Sec. Sec. 106.45(b)(5) and (f)(4)(iii) and 106.46(e)(6)(iii).
Accordingly, the regulations already require privacy-related training.
Nothing in the final regulations prevents a recipient from providing
training on other privacy laws or methods to protect sensitive data.
Although the Department is not authorized to restrict FOIA
requests, as requested by a commenter, the Department notes that FOIA
exempts certain information about individuals, including information in
medical files, when the disclosure of this information ``would
constitute a clearly unwarranted invasion of personal privacy.'' 5
U.S.C. 552(b)(6). The Department notes that under Sec.
106.45(b)(7)(ii), a party's or witness's records that are made or
maintained by a physician, psychologist, or other recognized
professional or paraprofessional related to the treatment of the party
or witness must not be accessed, considered, disclosed, or otherwise
used as part of the grievance procedures, unless the recipient obtains
that party's or witness's voluntary, written consent for use in the
grievance procedures. See section on Sec. 106.45(b)(6) and (7).
The Department agrees that it is important to protect the parties'
privacy while using language assistance services; however, a recipient
is in a better position to identify how to ensure privacy based on the
particular circumstances of what services are needed and how they
factor into the recipient's grievance procedures.
In response to a commenter's inquiry about when a recipient may
include a statement regarding the privacy rights of the parties, the
Department notes that various provisions of these final regulations
(e.g., Sec. Sec. 106.44(f)(1)(iii) and 106.45(c)(1)(i)) require a
recipient to inform the parties of the grievance procedures, which must
include reasonable steps to protect privacy.
Changes: None.
Due Process Concerns
Comments: Commenters raised concerns about the difficulty of
balancing privacy concerns with the requirements of due process.
Some commenters appreciated the clarification that a recipient must
maintain the privacy of parties and witnesses if possible and that
parties may contact witnesses, obtain evidence, and participate in the
investigation.
Other commenters emphasized the importance of ensuring impartial
investigations and grievance procedures. One commenter referenced the
importance of protecting a respondent's confidentiality, while another
commenter referenced their experience as a respondent and noted that
the recipient's refusal to disclose the identity of the complainant and
witnesses to the respondent until after the investigation concluded
prevented the respondent from organizing their defense.
Discussion: The Department appreciates commenters' concerns about
protecting privacy interests without infringing on due process rights,
as well as commenters' views that privacy protections are needed to
protect the fairness of the procedures. The Department maintains that
Sec. 106.45(b)(5) appropriately balances these considerations by
requiring a recipient to take reasonable steps to protect privacy while
prohibiting a recipient from taking such steps that restrict the
ability of the parties to obtain and present evidence; consult with
their family members, confidential resources, or advisors; or otherwise
prepare for or participate in the grievance procedures. In response to
a commenter's concern about restrictions on their ability to organize a
defense, the Department notes that under these final regulations, as
discussed above, a recipient is not permitted to withhold information
that is relevant to the allegations of sex discrimination and not
otherwise impermissible. In addition, under Sec. 106.45(c)(1)(ii), the
parties are entitled to a notice of the allegations that includes the
identities of the parties involved in the incident.
As the Department noted in the July 2022 NPRM, unrestricted
disclosures of sensitive information could threaten the fairness of the
grievance procedures by deterring parties or witnesses from
participating, negatively affecting the reliability of witness
testimony, facilitating retaliatory harassment, and causing other
potential harms. 87 FR 41469-70. Overly restrictive measures to protect
privacy could also jeopardize the fairness of the grievance procedures
and the reliability of the outcome, such as by interfering with the
parties' ability to identify relevant witnesses and gather other
evidence. Section 106.45(b)(5) therefore identifies certain limitations
on the recipient's ability to impose reasonable steps to protect
privacy.
Changes: None.
[[Page 33674]]
Authority and First Amendment Concerns
Comments: Some commenters expressed concern that proposed Sec.
106.45(b)(5) would exceed the Department's authority, would be
arbitrary and capricious (by shielding recipients from accountability),
and would be inconsistent with the First Amendment, free speech values,
and established law.
Some commenters opposed proposed Sec. 106.45(b)(5) because they
believed it would chill speech. Other commenters urged the Department
to modify proposed Sec. 106.45(b)(5) to include an exception that
allows parties to criticize how recipients handled their complaints to
hold recipients accountable. Another commenter criticized the exception
in proposed Sec. 106.45(b)(5) that would allow parties to discuss
allegations when defending their interests as overly narrow and vague
and an inappropriate limitation on free speech. Some commenters
inquired about the recipient's ability to act in response to a party
revealing information about an investigation in an article or on social
media.
Some commenters expressed concern that proposed Sec. 106.45(b)(5)
would invite a recipient to impose ``gag orders.'' Some commenters
urged the Department to retain the 2020 amendments' prohibition on
restricting parties from discussing allegations and gathering evidence
and emphasized the importance of permitting parties to seek guidance
and criticize the allegations or the handling of the grievance process.
Discussion: The Department emphasizes that students, employees, and
third parties retain their First Amendment rights, and Sec.
106.45(b)(5) does not infringe on these rights. Section 106.6(d) of the
Title IX regulations explicitly states that nothing in these
regulations requires a recipient to restrict rights that would
otherwise be protected from government action by the First Amendment.
Accordingly, a recipient must be mindful of the rights protected by the
First Amendment when taking reasonable steps to protect the privacy of
the parties and witnesses under Sec. 106.45(b)(5). For additional
discussion of the First Amendment, see the section on First Amendment
Considerations in the definition of ``sex-based harassment.''
The Department understands that some commenters wish to retain
Sec. 106.45(b)(5)(iii) from the 2020 amendments, which prohibits a
recipient from restricting a party's right to discuss the allegations
under investigation or gather and present evidence. The Department,
however, is persuaded by the concerns expressed by commenters during
the June 2021 Title IX Public Hearing, see 87 FR 41469, and during the
July 2022 NPRM public comment period, as described earlier in this
section of the preamble, regarding the many ways in which unrestricted
disclosures jeopardize the fairness of the grievance procedures. The
Department disagrees with commenters who characterized proposed Sec.
106.45(b)(5) as an invitation for recipients to impose ``gag orders.''
As discussed above, final Sec. 106.45(b)(5) will protect the parties'
ability to discuss the allegations by prohibiting a recipient from
taking steps to protect privacy that restrict the parties' ability to
obtain evidence, consult with certain individuals, or prepare for or
participate in the grievance procedures. With respect to commenters'
requests to retain Sec. 106.45(b)(5)(iii) from the 2020 amendments to
preserve the ability to seek guidance from others, the Department notes
that final Sec. 106.45(b)(5) prohibits a recipient from restricting a
party's ability to consult with their family members, confidential
resources, or advisors.
It is the Department's view that Sec. 106.45(b)(5)'s requirement
that a recipient take reasonable steps to protect the privacy of
parties and witnesses during the grievance procedures may include
restrictions on discussing the allegations or investigation in an
article or on social media as long as such restrictions are consistent
with the First Amendment. Widespread disclosures of personally
identifiable information on social media or in the media can threaten
the fairness of the grievance procedures and lead to harassment,
including retaliation. Section 106.45(b)(5) also limits the reasonable
steps a recipient can take to protect the privacy of the parties or
witnesses to those that do not restrict the parties' ability to obtain
and present evidence, consult with certain individuals, or otherwise
prepare for or participate in the grievance procedures. The Department
maintains that a recipient may be able to limit social media or other
widespread media disclosures in a manner that does not conflict with
Sec. 106.45(b)(5), depending on the circumstances and consistent with
the First Amendment.
Contrary to commenters' assertions, Sec. 106.45(b)(5) does not
exceed the Department's authority and is not inconsistent with Title IX
or established case law. We maintain our position, consistent with the
2020 amendments and as explained in the discussion of Sec. 106.44(j),
that measures to protect the privacy of personally identifiable
information are necessary to effectuate Title IX and to fully implement
Title IX's nondiscrimination mandate. The Department notes that
commenters who raised these issues did not explain how Sec.
106.45(b)(5) exceeds the Department's authority or is inconsistent with
case law. The Department is acting within the scope of its
congressionally delegated authority in requiring recipients to take
reasonable steps to protect the privacy of parties and witnesses.
The Department declines to add an exception to Sec. 106.45(b)(5)
to allow parties to criticize how recipients handled their complaints;
however, the Department reiterates that Sec. 106.45(b)(5) applies only
to protect the privacy of parties and witnesses during the pendency of
a recipient's grievance procedures. A categorical prohibition on
criticizing the recipient's handling of grievance procedures is not a
reasonable step to protect privacy, whereas a reasonable step might
include prohibiting a party from identifying parties or witnesses while
the grievance procedures are ongoing.
Regarding a commenter's criticism of ``defending their interests''
as overly narrow and vague and an inappropriate limitation on free
speech, the Department is replacing the phrases ``prepare for a
hearing, if one is offered'' and ``otherwise defend their interests''
with the phrase ``otherwise prepare for or participate in the grievance
procedures.'' The Department views this revised language as easier for
parties to understand and apply. The Department recognizes that some
might think this exception is also too narrow; however, the Department
maintains that Sec. 106.45(b)(5) appropriately balances the need for
parties to be able to make certain disclosures during the pendency of
the grievance procedures with the need to protect unrestricted
disclosures that could threaten the fairness of the procedures. The
Department reiterates that Sec. 106.45(b)(5) does not require a
recipient to restrict rights protected by the First Amendment.
Changes: The Department has replaced the phrases ``prepare for a
hearing, if one is offered'' and ``otherwise defend their interests''
with the single phrase ``otherwise prepare for or participate in the
grievance procedures.''
[[Page 33675]]
8. Section 106.45(b)(6) Objective Evaluation of All Relevant Evidence
and 106.45(b)(7) Exclusion of Impermissible Evidence
Sec. 106.45(b)(6): Objective Evaluation of All Relevant Evidence
Comments: Commenters expressed support for Sec. 106.45(b)(6) for
multiple reasons, including that it would establish clear guideposts,
ensure reliable resolutions, and establish a fair process. Commenters
expressed support for Sec. 106.45(b)(6)'s requirement that recipients
review all relevant evidence, including inculpatory and exculpatory
evidence, because this protects due process, limits litigation risk,
and is consistent with case law.
Some commenters sought clarification of the term ``relevant'' or
objected to a recipient's exercise of discretion regarding what
evidence is ``relevant.'' Commenters also expressed concern about the
parties' inability to contest the relevance determination.
Discussion: The Department appreciates the comments regarding the
importance of clarity, reliability, fairness, and impartiality. The
Department emphasizes that Sec. 106.45(b)(6) retains the same language
as Sec. 106.45(b)(1)(ii) in the 2020 amendments.
Both Sec. 106.45(b)(6) in these final regulations and Sec.
106.45(b)(1)(ii) in the 2020 amendments require an objective evaluation
of all ``relevant'' evidence. The 2020 amendments did not define the
term ``relevant,'' and 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. Section 106.2 defines
``relevant'' as ``related to the allegations of sex discrimination,''
and clarifies that ``evidence is relevant when it may aid a
decisionmaker in determining whether the alleged sex discrimination
occurred.'' It is the Department's view that both the final regulations
and the 2020 amendments require a similar universe of evidence to be
objectively evaluated by the decisionmaker. For a more detailed
discussion on the definition of ``relevant,'' please refer to the
section on the definition of ``relevant'' in Sec. 106.2.
For clarity, the Department has revised Sec. 106.45(b)(6) to state
that the recipient's grievance procedures must require an objective
evaluation of all evidence that is relevant, as defined in Sec. 106.2,
excluding evidence that is deemed impermissible under Sec.
106.45(b)(7). The Department articulated this interpretation in the
July 2022 NPRM, when the Department proposed to consolidate the three
categories of impermissible evidence into Sec. 106.45(b)(7) 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.'' 87 FR 41471. As
explained in the discussion of Sec. 106.45(b)(7) of these final
regulations, a recipient may only consider impermissible evidence for
the purpose of determining whether an exception under Sec.
106.45(b)(7)(i) through (iii) applies.
Parties may raise concerns about relevance determinations as part
of their reasonable opportunity to respond to the evidence under
Sec. Sec. 106.45(f)(4)(ii) and 106.46(e)(6)(ii). The Department also
notes that, under Sec. 106.8(d)(2)(iv), all investigators,
decisionmakers, and other persons who are responsible for implementing
the grievance procedures receive training on the meaning and
application of the term ``relevant.'' In addition, nothing prohibits a
recipient from choosing to allow other opportunities for the parties to
contest relevance determinations. See Sec. 106.45(j). For complaints
under Sec. 106.46, the parties may appeal erroneous relevance
determinations that affected the outcome under Sec. 106.46(i)(1)(i).
See 85 FR 30343.
Changes: The Department has revised Sec. 106.45(b)(6) to clarify
that a recipient's grievance procedures must require an objective
evaluation of all evidence that is relevant and not otherwise
impermissible. The Department has added a cross-reference to Sec.
106.2, which defines ``relevant,'' and a cross-reference to Sec.
106.45(b)(7), which describes the types of impermissible evidence and
notes certain exceptions.
Sec. 106.45(b)(7): Exclusion of Impermissible Evidence Regardless of
Relevance
Comments: Some commenters supported Sec. 106.45(b)(7) for
clarifying when evidence is impermissible even if relevant and for
resolving discrepancies with State laws.\50\ One commenter expressed
concern that Sec. 106.45(b)(7) requires the exclusion of relevant
evidence, though the commenter acknowledged that Sec. 106.45(b)(7)
generally retains the prohibitions that appear in the 2020 amendments.
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\50\ One commenter cited N.Y. Educ. Law Sec. 6444(5)(c)(vi).
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Some commenters sought clarification as to whether, under Sec.
106.45(b)(7), a party may consent to the use of part of a record (e.g.,
a sexual assault nurse examiner's report) while withholding the rest of
the record, stating that the other party must be able to view the
entire document to assess whether the withheld material is relevant.
Discussion: The Department acknowledges the comments in support of
Sec. 106.45(b)(7), which sets forth the types of evidence (and
questions seeking that evidence) that must not be accessed, considered,
disclosed, or otherwise used, regardless of whether they are relevant.
The three categories of evidence that must be excluded under Sec.
106.45(b)(7) are substantially similar to the prohibitions that appear
in the 2020 amendments in Sec. 106.45(b)(1)(x), (5)(i), and (6)(i) and
(ii). The Department continues to believe that such evidence is
particularly sensitive (e.g., medical records, evidence of the
complainant's prior sexual conduct) or otherwise inappropriate for use
in grievance procedures (e.g., information protected by attorney-client
privilege). See 85 FR 30303-04, 30317, 30351, 30361.
The Department declines to modify Sec. 106.45(b)(7) to require a
party to provide consent to an entire document if the party consents to
use of a portion of it. Keeping in mind that the types of evidence
listed in Sec. 106.45(b)(7) are presumptively excluded, a
decisionmaker may consider a party's reasons for partially withholding
consent as part of the decisionmaker's overarching role in assessing
credibility and deciding responsibility. The Department recognizes that
there may be circumstances in which a partial disclosure is reasonable,
such as when portions of the document are privileged or otherwise
legally protected, when portions of the document are appropriately
redacted or withheld as irrelevant, or when the party only has access
to a portion of the document.
The Department recognizes that a recipient may need to access or
consider impermissible evidence (and questions seeking that evidence)
for the narrow purpose of determining whether an exception in Sec.
106.45(b)(7)(i) through (iii) applies. Accordingly, the Department has
revised Sec. 106.45(b)(7) to clarify that impermissible evidence (and
questions seeking that evidence) must not be accessed or considered
except by a recipient for the purpose of determining whether an
exception applies that would permit the use of such evidence.
Changes: The Department has revised Sec. 106.45(b)(7) to make it
clear that impermissible evidence must not be accessed, considered,
disclosed, or otherwise used; however, there is a narrow exception for
the recipient to access and consider evidence to determine whether an
exception in Sec. 106.45(b)(7)(i) through (iii) applies.
[[Page 33676]]
Sec. 106.45(b)(7)(i): Exclusion of Privileged Evidence or Evidence
Provided to a Confidential Employee
Comments: Some commenters praised the Department for clarifying the
prohibitions on using privileged information, including that this
prohibition encompasses Federal and State privileges. Some commenters
urged the Department to modify Sec. 106.45(b)(7)(i) to exclude records
provided to confidential employees who do not fall under a preexisting
legally recognized privilege. Some commenters urged the Department to
require written voluntary consent before information provided to a
confidential employee could be used in the investigation. Some
commenters encouraged the Department to require recipients to notify
parties of the possibility of privilege and to encourage parties to
consult counsel to prevent parties from inadvertently turning over
privileged information.
Discussion: The Department acknowledges commenters' support for
Sec. 106.45(b)(7)(i) as excluding evidence protected under a privilege
recognized by Federal or State law.
The Department declines to include additional requirements about
what recipients must advise parties regarding privileged information
because this is already covered by the final regulations. Under Sec.
106.44(f)(1)(iii) and (iv), the Title IX Coordinator is obligated to
notify the complainant, upon notification of conduct that reasonably
may constitute sex discrimination, and the respondent, if a complaint
is made, of the grievance procedures under Sec. 106.45, which includes
information regarding what types of evidence and questions seeking
evidence are impermissible under Sec. 106.45(b)(7). The recipient is
also required to notify the parties of the grievance procedures, as
part of the notice of allegations under Sec. 106.45(c)(1)(i), and the
grievance procedures include information regarding what types of
evidence and questions seeking evidence are impermissible under Sec.
106.45(b)(7). The Department declines to require recipients to
encourage parties to consult attorneys regarding privileged information
because nothing in the final regulations requires parties to have an
attorney. Parties may choose to consult an attorney, and the Department
does not intend to imply otherwise.
The Department agrees with the concerns expressed by commenters
about the need to protect information shared with confidential
employees and the expectation that such information would be excluded
from the grievance procedures. Accordingly, the Department has revised
Sec. 106.45(b)(7)(i) to state that evidence provided to a confidential
employee is impermissible unless the person who confided in the
confidential employee has waived that confidentiality. If, however, the
evidence provided to a confidential employee is also available from
other non-confidential sources, the evidence may be accessed from those
non-confidential sources and used as part of the grievance procedures.
Section 106.45(b)(7)(i) continues to require any waiver to be
voluntary; however, the Department has removed the specification from
proposed Sec. 106.45(b)(7)(i) that the waiver be made in a manner
permitted in the recipient's jurisdiction. The Department notes that
jurisdictions may not have an established waiver standard for evidence
shared with confidential employees. For situations in which there is an
existing legal standard for waiving a particular privilege (e.g.,
specified by a State law), that legal standard governs. The Department
does not intend for Sec. 106.45(b)(7)(i) to supplant established
waiver standards but rather to provide flexibility for situations in
which no waiver standard exists. The Department has determined that it
is not necessary to specify the manner for waiving a privilege and
maintains that it is appropriate to give recipients the discretion to
specify the manner for waiving a privilege (unless there is an existing
waiver standard that applies), which may include requiring that it be
in writing if the recipient so chooses. The Department also notes that
Sec. 106.45(b)(1)(x) of the 2020 amendments permitted a waiver of
privilege without specifying the manner.
Changes: The Department has revised Sec. 106.47(b)(7)(i) to state
that a recipient must exclude evidence that is protected under a
privilege as recognized by Federal or State law and evidence provided
to a confidential employee, unless the person to whom the privilege or
confidentiality is owed has voluntarily waived the privilege or
confidentiality.
Sec. 106.45(b)(7)(ii): Exclusion of Records Maintained in Connection
With Treatment
Comments: Commenters expressed support for Sec. 106.45(b)(7)(ii)
for multiple reasons. Some noted that nonconsensual disclosure of
medical and counseling records can result in distrust, and others
recommended extending the protection to a witness's records, in
addition to a party's records.
Some commenters supported Sec. 106.45(b)(7)(ii) but proposed
alterations. Some commenters recommended including a narrow exception
to allow a recipient to access, consider, or disclose a party's records
in connection with treatment in cases in which physical injury is
relevant and the records are probative of that issue. Some commenters
urged revisions to state that postsecondary students have a right to
access their on-campus treatment records prior to deciding whether to
consent to their use in the Title IX grievance procedures. Some
commenters opposed Sec. 106.45(b)(7)(ii) as unduly broad and instead
recommended that these records be subject to the ordinary test of
relevance, except as protected by privilege. One commenter stated that
materials related to a student-party's special education services (or
eligibility for such services) should not be used as evidence.
One commenter asked the Department to extend the ban on the
nonconsensual use of records to recipients who are sued for Title IX
violations. Another commenter expressed concern that allowing parties
to consent to the use of medical and treatment records might open the
door to their use in related litigation, and that individuals are
unable to comprehend the meaning or consequences of waiving their
privilege.
Some commenters sought clarification regarding the application of
Sec. 106.45(b)(7)(ii) to allegations of sexual misconduct involving
clinicians employed by universities who work in academic medical
centers (AMCs). Commenters sought clarification about the interaction
between HIPAA and Sec. 106.45(b)(7)(ii); some recommended that this
provision not apply to medical records that are subject to HIPAA, and
some recommended that this provision align with HIPAA because school
records include medical information.
Some commenters objected to the removal of the reference to FERPA
in Sec. 106.45(b)(5)(i) of the 2020 amendments as removing a reminder
of the rights of parents, or sought clarification of the approach to
records related to treatment under Title IX and FERPA.
Discussion: The Department acknowledges the commenters' support for
Sec. 106.45(b)(7)(ii). The Department agrees with commenters regarding
the importance of extending the exclusion of records in connection with
treatment to witnesses, and the Department has revised Sec.
106.45(b)(7)(ii) accordingly. The Department recognized the particular
sensitivity of these records in the preamble to the 2020 amendments,
see 85 FR 30303, and the Department maintains that this sensitivity
justifies a prohibition on the nonconsensual use of
[[Page 33677]]
these records as related to both parties and witnesses.
The Department clarifies that, consistent with the preamble to the
2020 amendments, Sec. 106.45(b)(7)(ii)'s prohibition on the use of
records related to treatment includes a student's IEP or Section 504
plan. See 85 FR 30427. Thus, the recipient must obtain voluntary,
written consent for the use of such materials in the recipient's
grievance procedures before such materials can be used as evidence.
In response to a request to extend Sec. 106.45(b)(7)(ii) to
recipients who are sued in court for Title IX violations, the
Department notes that Sec. 106.45 sets forth the requirements for a
recipient's Title IX grievance procedures for administrative
proceedings. Whether a court may require disclosure of a party's
records in connection with treatment as part of litigation is beyond
the scope of this rulemaking. While the Department is sympathetic to
the concern that individuals may not understand the meaning of waiving
their privilege, the Department maintains that Sec. 106.45(b)(7)(ii)'s
heightened protection of records related to treatment sufficiently
cautions parties and witnesses to consider whether to voluntarily
consent to the use of their records in the grievance procedures.
The Department declines to create an exception to Sec.
106.45(b)(7)(ii) to allow a recipient to use a party's records in
connection with treatment in cases in which physical injury is relevant
to the proceedings. The 2020 amendments do not allow a recipient to
use, or require a party to submit, treatment records in light of the
sensitivity of such records (Sec. 106.45(b)(5)(i)), and the Department
maintains this position in the final regulations. The Department
continues to maintain that these records constitute ``some of the most
sensitive documents about a party,'' 85 FR 30525, which warrants giving
the parties the right to control access to their own records even in
cases in which the absence of consent to use crucial records may affect
the recipient's ability to determine whether sex discrimination
occurred by the preponderance of the evidence.
The Department acknowledges that treatment records are carved out
of the definition of education records in FERPA. See 20 U.S.C.
1232g(a)(4)(B)(iv); 34 CFR 99.3. Title IX does not require a recipient
to provide postsecondary students or students who are eighteen years of
age or older with access to their treatment records prior to their
decision whether to consent to use of their records in the Title IX
grievance procedures, though a recipient may choose to provide this
access \51\ and those students may be able to access them through State
laws prior to deciding whether to give consent. The disclosure of
treatment records is governed by these other laws and therefore is
outside the scope of this rulemaking. Recipients should be mindful of
any applicable requirements under FERPA or State laws regarding such
disclosure.
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\51\ See U.S. Dep't of Educ., Dear Colleague Letter to School
Officials at Institutions of Higher Education, at 3 (Aug. 2016),
https://studentprivacy.ed.gov/resources/dear-colleague-letter-school-officials-institutions-higher-education (noting that a
recipient may choose to disclose a treatment record for a
postsecondary student or a student who is eighteen years of age or
older to that student, and that the treatment record would then
become an ``education record'' under FERPA).
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The Department disagrees with the suggestion to apply the general
relevance standard to a party's (or witness'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 voluntary, written consent. The
Department continues to maintain that medical, psychological, and
similar records made in connection with treatment are particularly
sensitive and warrant heightened privacy protections.
The Department appreciates the comments regarding HIPAA, which
protects the privacy and security of certain health information;
however, the Department does not enforce HIPAA and lacks authority
under Title IX to require recipients to comply with HIPAA through these
Title IX regulations. The Department also notes that HIPAA specifically
excludes from its coverage records that are protected by FERPA,
including education records and treatment records. See U.S. Dep't of
Health & Hum. Servs. & U.S. Dep't of Educ., Joint Guidance on the
Application of the Family Educational Rights and Privacy Act (FERPA)
and the Health Insurance Portability and Accountability Act of 1996
(HIPAA) to Student Health Records, at 7 (Dec. 2019 update), https://studentprivacy.ed.gov/resources/joint-guidance-application-ferpa-and-hipaa-student-health-records. A recipient must comply with all
applicable laws, and the recipient is in the best position to determine
whether and how HIPAA may apply to it. See 85 FR 30434. These Title IX
regulations apply to records involved in a Title IX grievance
proceeding, regardless of whether HIPAA also applies to the records.
Section 106.45(b)(7)(ii) also applies to grievance procedures involving
allegations of sexual misconduct involving clinicians who are employed
by recipients and work at AMCs.
The Department maintains that it is not necessary to reference
FERPA's definitions of ``eligible student'' and ``parent'' in a
provision describing which records may be used as part of the Title IX
grievance procedures. These final Title IX regulations make clear, in
Sec. 106.6(g), that nothing in these regulations limits the rights of
a parent, guardian, or authorized legal representative to act on behalf
of a complainant, respondent, or other person, which would include
their child, subject to FERPA. When considering 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, including any authority they may have to consent
on behalf of a student to the use of records maintained in connection
with treatment. For additional information regarding the interaction
between FERPA and Title IX, see the section on Sec. 106.6(e).
Changes: The Department has extended Sec. 106.45(b)(7)(ii) to
apply to a witness'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
witness, unless the recipient obtains the witness's voluntary, written
consent for use in the recipient's grievance procedures.
Sec. 106.45(b)(7)(iii): Exclusion of Evidence Related to the
Complainant's Sexual Interests or Prior Sexual Conduct
Comments: Some commenters expressed support for Sec.
106.45(b)(7)(iii)'s exclusion of evidence and questions regarding prior
sexual conduct and the requirement that prior sexual conduct between
the parties does not prove or imply consent. For example, some
commenters said it would be consistent with many States' rape shield
laws. Another commenter expressed appreciation for the Department's
efforts to protect parties from invasions of privacy, character
attacks, and stereotyping.
Other commenters expressed concern about aligning proposed Sec.
106.45(b)(7)(iii) with State rape shield laws. Some commenters opposed
proposed Sec. 106.45(b)(7)(iii) as unduly broad. For example, some
commenters recommended that evidence of prior sexual conduct be subject
to the ordinary test of relevance unless privileged or recommended
requiring a particularized showing of relevance.
[[Page 33678]]
Some commenters recommended that proposed Sec. 106.45(b)(7) align more
closely with Federal Rule of Evidence 412(b)(1)(C). Some commenters
recommended that the limitations on disclosure of prior sexual conduct
or sexual interests apply equally to both parties, and another
commenter asked for clarification that proposed Sec. 106.45(b)(7) does
not prohibit respondents from presenting exculpatory contextual
information. One commenter asserted that proposed Sec.
106.45(b)(7)(iii) is unworkable in the elementary school and secondary
school contexts and appeared to suggest removing the exceptions that
would allow evidence of prior sexual conduct.
One commenter expressed concern that proposed Sec.
106.45(b)(7)(iii) would improperly put the investigator in control of
whether to include certain evidence based on the investigator's view of
how the parties might use the evidence in the proceeding.
Some commenters asked the Department to expressly permit evidence
of a respondent's prior sex-based conduct as pattern evidence and to
weigh such evidence based on its strength. As support for their
recommendation to permit evidence of a respondent's prior sex-based
conduct, the commenters referenced alignment with Federal or State
evidentiary rules, Title VII, the Clery Act, research findings that
students who commit sex-based harm are frequently repeat perpetrators,
and the small likelihood that all survivors of a repeat perpetrator
will report the misconduct due to the underreporting of sexual assault.
Some commenters asked the Department to address the interests of
``pattern witnesses,'' which a commenter noted would be consistent with
Rule 412 of the Federal Rules of Evidence.
One commenter urged the Department to revise proposed Sec.
106.45(b)(7)(iii) to state that the complainant can always provide
evidence of their own sexual history, interests, or predisposition.
Discussion: The Department acknowledges commenters' support for
Sec. 106.45(b)(7)(iii). Section 106.45(b)(7)(iii) applies to the
entirety of a recipient's Title IX grievance procedures for complaints
of sex discrimination, including sex-based harassment, and is
substantially similar to the corresponding evidentiary exclusions in
the 2020 amendments at Sec. 106.45(b)(6)(i) and (ii). The Department
does not agree with commenters who viewed the general prohibition in
Sec. 106.45(b)(7)(iii) or the two exceptions to the general
prohibition as overly broad. As noted in the preamble to the 2020
amendments, these prohibitions align with rape shield protections used
in Federal litigation and serve the critically important purpose of
protecting complainants in Title IX grievance procedures from being
questioned about or having evidence considered regarding their sexual
interests or prior sexual conduct, with two limited exceptions. See 85
FR 30103. The Department is not aware of any rape shield laws that
conflict with Sec. 106.45(b)(7)(iii), nor did commenters identify any.
Given the particularly sensitive nature of this type of evidence, as
well as the potential for prejudice and chilling effects associated
with the use of this evidence, it is inappropriate to apply a standard
of relevance or particularized relevance to this evidence.
The Department disagrees that Sec. 106.45(b)(7)(iii) is unworkable
in elementary schools and secondary schools, and the Department notes
that a similar provision exists in the 2020 amendments at Sec.
106.45(b)(6)(ii). It is important to limit access to this particularly
sensitive information except in two narrow circumstances across all
types of recipients. The Department also notes that Sec. 106.8(d)(2)
requires investigators, decisionmakers, and other persons responsible
for implementing the recipient's grievance procedures to be trained on
the types of evidence that are impermissible regardless of relevance;
this required training will help elementary schools and secondary
schools with the application of this provision.
The Department declines to add an exception to allow evidence of
sexual history when its exclusion would allegedly violate the
respondent's constitutional rights (based on Rule 412(b)(1)(C) of the
Federal Rules of Evidence) or when the evidence is exculpatory. As the
Department noted in the preamble to the 2020 amendments, the exception
in Rule 412(b)(1)(C) of the Federal Rules of Evidence is explicitly
limited to criminal defendants, whose rights differ from respondents in
Title IX grievance procedures, because, among other things, criminal
defendants face the possibility of incarceration. See 85 FR 30351-52.
Thus, prohibiting the introduction into a Title IX grievance procedure
of evidence that may have been permitted in a criminal trial does not
present the same constitutional concerns. In addition, these final
regulations permit a wide universe of relevant and not otherwise
impermissible evidence. Consistent with the 2020 amendments, the
Department maintains that the grievance procedures outlined in Sec.
106.45, and if applicable Sec. 106.46, provide robust procedural
protections of respondents' due process rights. See id. Additionally,
the Department maintains its reasoning from 2020 that importing a
complex set of evidentiary rules from the criminal setting makes it
less likely that non-lawyers would feel competent to serve as a
recipient's decisionmaker. See id.
The Department disagrees that Sec. 106.45(b)(7)(iii) puts the
investigator in control of whether to include certain evidence based on
the investigator's view of how the parties might use the evidence in
the proceeding because the parties may articulate why the evidence
should not be excluded under Sec. 106.45(b)(7)(iii). Parties may
assert that certain evidence should not be excluded as part of their
reasonable opportunity to respond to the evidence that is relevant to
the allegations and not otherwise impermissible under Sec. Sec.
106.45(f)(4)(ii) and 106.46(e)(6)(ii). In addition, nothing prohibits a
recipient from allowing parties to explain why evidence should not be
excluded during other parts of the grievance procedures. See Sec.
106.45(j).
The Department declines to opine on specific evidentiary scenarios
because such determinations related to the applicability of Sec.
106.45(b)(7)(iii) are inherently fact-specific.
The Department declines to extend Sec. 106.45(b)(7)(iii)'s
protections to respondents. Consistent with the Department's position
expressed in the preamble to the 2020 amendments, the Department does
not wish to exclude more evidence and information than is necessary to
further the goals of the Title IX grievance procedures. See 85 FR
30352. The Department has determined that respondents' prior sexual
conduct does not require a special provision to adequately protect
them, whereas the Department maintains--consistent with case law \52\
and rape shield protections in many States--that rape shield
protections for complainants are needed to counteract historical and
societal misperceptions that a complainant's sexual history is always
relevant to sex-based harassment allegations. The Department continues
to caution recipients that some situations will involve counterclaims
between parties, such that a respondent is also a complainant. See 85
FR 30352. In such situations, the recipient must take care to properly
apply the rape shield protections to any party designated as a
``complainant,'' even if the same party is
[[Page 33679]]
also a ``respondent'' in a consolidated grievance process.
---------------------------------------------------------------------------
\52\ See, e.g., Michigan v. Lucas, 500 U.S. 145, 146 (1991).
---------------------------------------------------------------------------
The Department also declines to modify these final regulations to
expressly permit evidence of a respondent's prior sex-based conduct as
pattern evidence. Such evidence is governed by the relevance standard,
as defined in Sec. 106.2 of these final regulations, and must be
assessed on a case-by-case basis. The Department appreciates the
commenter's point that pattern evidence may be admissible in other
proceedings, such as court proceedings governed by the Federal Rules of
Evidence. The Department notes that pattern evidence may be permissible
for use in Title IX grievance procedures, as the recipient must
objectively evaluate pattern evidence to the extent it is relevant,
i.e., related to the allegations of sex discrimination under
investigation and may aid a decisionmaker in determining whether the
alleged sex discrimination occurred. See Sec. 106.2.
The Department appreciates the concerns raised regarding pattern
witnesses, i.e., witnesses who were allegedly sexually harassed or
assaulted by the same respondent; however, the Department declines to
extend the protections of Sec. 106.45(b)(7)(iii) to pattern witnesses.
To ensure fair proceedings based on a broad universe of admissible
evidence, the Department is not expanding Sec. 106.45(b)(7)(iii)
beyond evidence that relates to the sexual interests or prior sexual
conduct of complainants. The Department notes that a witness may
decline to answer particular questions as part of the grievance
procedures.
The Department also declines to revise Sec. 106.45(b)(7)(iii) to
generally permit the complainant to provide evidence of their own
sexual history, interests, or predisposition. Allowing complainants to
broadly introduce the evidence prohibited by Sec. 106.45(b)(7)(iii)
threatens to deprive respondents of due process (e.g., allowing a
complainant to introduce evidence of prior sexual conduct but not
permitting the respondent to rebut) and might result in misuse by the
parties. Complainants, like respondents, are only permitted to use such
information under the exceptions to Sec. 106.45(b)(7)(iii) when
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 Department appreciates concerns that State laws may differ from
the grievance procedures outlined here. A recipient may continue to
comply with State law to the extent that it does not conflict with the
requirements in these final regulations. In the event of an actual
conflict between Sec. 106.45(b)(7)(iii) and State or local law, Sec.
106.45(b)(7)(iii) has preemptive effect over the conflicting State or
local law. For a more detailed discussion of preemption in these final
regulations, see the discussion of Sec. 106.6(b).
Changes: None.
Sec. 106.45(b)(7)(iii): Evidence Offered To Prove Consent
Comments: Some commenters opposed proposed Sec. 106.45(b)(7)(iii)
based on their view that evidence of sexual interests or prior sexual
conduct could prove or imply consent. Some commenters urged the
Department to remove the second sentence of proposed Sec.
106.45(b)(7)(iii) or to replace it with language stating that the prior
sexual conduct does not ``necessarily'' demonstrate or imply consent.
One commenter viewed the first and second sentences of proposed Sec.
106.45(b)(7)(iii) as contradicting each other. Another commenter
expressed concern that proposed Sec. 106.45(b)(7)(iii) will encourage
recipients to draw improper inferences about implied consent and urged
the Department to narrow the exception to apply to evidence about how
the parties communicated consent rather than to prove consent itself or
to clarify that similarities in the types of communications related to
consent do not imply consent.
One commenter suggested that the Department revise proposed Sec.
106.45(b)(7)(iii) to clarify that consent is not implied based on a
variety of factors, including but not limited to a social or romantic
relationship between the parties, and that prior conduct includes
conduct occurring after the alleged incident. Another commenter urged
the Department to change the references to ``sex-based harassment'' in
the second sentence of proposed Sec. 106.45(b)(7)(iii) to ``sexual
discrimination.''
Discussion: The Department appreciates the concerns and questions
from commenters regarding evidence of the complainant's prior sexual
conduct and whether such evidence can demonstrate or imply the
complainant's consent to the alleged sex-based harassment. After
considering the comments seeking clarification about how evidence of
prior sexual conduct can be used, the Department has revised Sec.
106.45(b)(7)(iii) to clarify that the fact of prior consensual sexual
conduct does not ``by itself'' demonstrate or imply the complainant's
consent to the alleged sex-based harassment or preclude a determination
that sex-based harassment occurred. Even if there are similarities in
the types of consent-related communication, such similarities do not on
their own demonstrate or imply the complainant's consent to the alleged
conduct or preclude a determination that sex-based harassment occurred.
The addition of ``by itself'' helps resolve any perceived inconsistency
between the first and second sentences of Sec. 106.45(b)(7)(iii).
The Department clarifies that ``prior'' sexual conduct refers to
any conduct prior to the conclusion of the grievance procedures and is
not limited to the conduct that occurred prior to the alleged incident
of sex-based harassment. This aligns with the Department's position
expressed in the preamble to the 2020 amendments that the admission of
evidence offered to prove a complainant engaged in other sexual
behavior should be prohibited. See 85 FR 30354 n.1355 (explaining the
Department's use of ``prior'' rather than ``other'' as a more widely
understood reference to evidence unrelated to the alleged conduct at
issue). The Department also wishes to clarify that Sec.
106.45(b)(7)(iii) does not apply to evidence about a relationship
between the parties that is not related to the complainant's sexual
interests or prior sexual conduct. Evidence, however, that is directly
linked to prior sexual conduct (e.g., evidence of a pregnancy, use of
birth control, or a medical history of a sexually transmitted
infection) is prohibited under Sec. 106.45(b)(7)(iii) and is only
permissible if it falls within an exception.
The Department declines to revise the second sentence of Sec.
106.45(b)(7)(iii) to refer to consent to alleged sex discrimination,
rather than consent to alleged sex-based harassment, because evidence
of prior consensual sexual conduct generally will not relate to
complaints alleging sex discrimination other than sex-based harassment.
Changes: For consistency with the phrase in the second sentence,
the Department has revised the first sentence to refer to ``consent to
the alleged sex-based harassment.'' The Department has revised the
second sentence of Sec. 106.45(b)(7)(iii) to state that prior
consensual sexual conduct between the parties does not ``by itself''
demonstrate or imply the complainant's consent to the alleged sex-based
harassment or preclude a determination that sex-based harassment
occurred. The Department has also made non-
[[Page 33680]]
substantive revisions for clarity to move the language ``offered to
prove consent'' to the end of the sentence, to add ``to the alleged
sex-based harassment'' for clarity, and to replace the word
``concerning'' with the word ``about.''
Sec. 106.45(b)(7)(iii): Sexual Interests
Comments: Some commenters objected to the use of the phrase
``sexual interests or prior sexual conduct,'' and suggested
alternatives, including ``sexual interests, history, and/or
predisposition,'' or some combination of those terms. One commenter
cited Rule 412(a)(2) of the Federal Rules of Evidence, which uses the
term ``sexual predisposition.'' One commenter expressed concern about
the absence of a definition of sexual interests.
Discussion: For the reasons expressed in the July 2022 NPRM, the
Department continues to maintain that the phrase ``sexual interests or
prior sexual conduct'' best describes the sensitive information that
the Department seeks to protect under Sec. 106.45(b)(7)(iii). 87 FR
41472. The Department maintains its position from the July 2022 NPRM
that the best approach is to reference the complainant's ``prior sexual
conduct'' instead of ``prior sexual behavior'' or ``prior sexual
history'' because these Title IX regulations repeatedly use the term
``conduct.'' In addition, the Department continues to maintain that the
term ``sexual interests'' is more appropriate than the term ``sexual
predisposition,'' which the Department views as an outdated phrase that
may conjure the type of assumptions that the Department seeks to
prohibit. See 87 FR 41472 (citing 85 FR 30351). Although the Department
has updated the terminology, evidence related to sexual predisposition
that the 2020 amendments prohibited continues to be prohibited as
evidence related to sexual interests under these final regulations. The
Department notes that evidence related to sexual interests includes,
but is not limited to, evidence like mode of dress, speech, and
lifestyle. This position is not inconsistent with the Federal Rules of
Evidence. See Fed. R. Evid. 412 advisory committee's note to the 1994
amendment (explaining ``sexual predisposition'').
Changes: None.
9. Section 106.45(b)(8) Procedures That Apply to Some, But Not All,
Complaints
Comments: Some commenters asked whether a recipient has discretion
to use certain procedures for some, but not all, complaints of sex
discrimination, provided that those procedures are all consistent with
the regulations.
Discussion: As explained elsewhere in the preamble, the final
regulations provide a recipient with reasonable options for how to
structure grievance procedures to ensure they are equitable for the
parties while accommodating each recipient's administrative structure,
education community, and applicable Federal, State, or local law. In
light of this goal, it is appropriate to provide a recipient with
discretion to use certain procedures for some, but not all, complaints
of sex discrimination, provided that it informs its education community
in advance of when certain procedures apply. The Department has added a
new Sec. 106.45(b)(8) requiring a recipient that chooses to adopt
grievance procedures that apply to some, but not all, complaints, to
articulate consistent principles in its written grievance procedures
for how the recipient will determine which procedures apply. This means
that a recipient must provide information regarding what factors, if
any, the recipient will consider when determining under what
circumstances or to which types of sex discrimination complaints
certain procedures apply (e.g., complaints involving certain forms of
sex-based harassment, student-to-student sex-based harassment
complaints, complaints with certain types of evidence, complaints
involving students of certain ages or education levels). The Department
also notes that a recipient's determination regarding whether to apply
certain procedures to some, but not all, complaints must be made in a
manner that treats complainants and respondents equitably, consistent
with Sec. 106.45(b)(1). In addition, although this provision permits a
recipient to use different procedures for some, but not all, complaints
of sex discrimination, a recipient is not permitted to use different
procedures for different parties within a specific complaint
investigation (e.g., use a live hearing with questioning by an advisor
for assessing the credibility of one party and use live questioning
during individual meetings to assess the credibility of the other
party) absent a party's need for a disability-related accommodation or
language access services.
Changes: The Department has added new Sec. 106.45(b)(8) requiring
a recipient's grievance procedures to articulate consistent principles
for how the recipient will determine which procedures apply if a
recipient chooses to adopt certain aspects of the grievance procedures
for the resolution of some, but not all, complaints.
10. Section 106.45(c) Notice of Allegations
Comments: Some commenters urged the Department to maintain the 2020
amendments' requirements for providing a notice of allegations for
multiple reasons, including that such a notice ensures respondents
receive due process protections and are able to adequately respond to
allegations. Commenters noted that courts have recognized the
importance of providing adequate notice to respondents.
Some commenters requested more clarity regarding what constitutes
``sufficient information'' in Sec. 106.45(c)(1)(ii) to allow the
parties to respond to the allegations, including whether it should
specify specific forms of discrimination or identify specific policies
alleged to have been violated.
Other commenters suggested further simplifying or eliminating the
notice of allegations requirement in proposed Sec. 106.45(c).
Some commenters expressed support for the proposed requirement that
recipients provide written notice of sex-based harassment allegations
at the postsecondary level and allow oral notice of sex discrimination
allegations in elementary schools and secondary schools, noting that
different procedures are appropriate due to differences in the ages and
needs of different students. Conversely, some commenters expressed
concern and confusion that the ``sufficient information'' identified in
Sec. 106.45(c)(1)(ii) is not the same as the written notices required
by Sec. 106.46(c). Some commenters urged the Department to extend the
requirement for a written notice of allegations in proposed Sec.
106.46(c) to the contexts covered by Sec. 106.45(c), arguing that
written notice promotes predictability, transparency, and consistency,
enhances the legitimacy of the process, and ensures recipients have a
written documentation of having provided notice.
Some commenters urged the Department to add other elements to the
notice, including, for example, information regarding grievance
procedures, the parties' rights, access to an advisor, evidentiary
standards, and the retaliation reporting process.
Some commenters sought clarifications or changes regarding the
timing of the notice. For example, some commenters asked the Department
to clarify how a recipient can ensure simultaneous communication with
the parties when notice is provided orally. Some commenters suggested
that recipients should be required to provide a notice of allegations
only when a
[[Page 33681]]
recipient is bringing a misconduct charge under Title IX, not upon the
receipt of a complaint. One commenter asked the Department to clarify
whether a recipient needs to provide notice of allegations to parties
prior to informal resolution, noting that proposed Sec. 106.45(c)(ii)
seems to conflict with the nondisclosure protections in proposed Sec.
106.44(j).
One commenter urged the Department to examine how certain
notifications to a student's parents could adversely impact an LGBTQI+
or pregnant student in some cases, such as leaving them homeless or
vulnerable to abuse.
Discussion: The Department acknowledges comments supporting a
notice of allegations that ensures fairness and transparency and aligns
with due process protections recognized by Federal courts. As explained
in the July 2022 NPRM, Sec. 106.45(c) maintains many components of the
notice of allegations in the 2020 amendments, meets and surpasses the
due process requirements set by the Supreme Court in Goss, 419 U.S. at
581, allows flexibility in recognition of differences in the elementary
and secondary and postsecondary contexts, and aligns with other
revisions to the grievance procedure requirements. 87 FR 41473-74.
The Department proposed the changes in the July 2022 NPRM in light
of factors including public input OCR received in listening sessions
and during the June 2021 Title IX Public Hearing. 87 FR 41473. The
principal changes were to broaden the requirement for a notice of
allegations to apply to any form of sex discrimination rather than
applying only to allegations of sex-based harassment, add a requirement
that the notice remind parties that retaliation is prohibited to
address concerns raised by some stakeholders, and give recipients more
flexibility to provide a simplified and oral notice in appropriate
contexts to address stakeholder concerns about challenges in applying
this requirement in elementary schools and secondary schools. The
Department maintains that these changes make the notice of allegations
more consistent with the scope of Title IX and give recipients
appropriate flexibility to apply the requirement in ways that are
better designed to timely and effectively inform parties of its
investigation.
The Department declines to adopt commenters' suggestions to further
simplify or eliminate the notice of allegations requirement. As
explained in more detail in the July 2022 NPRM and below, the
Department has determined each element of the notice of allegations
serves an important function to ensure adequate, reliable, and
impartial investigations of sex discrimination complaints. 87 FR 41472-
74.
Further, the Department agrees with commenters that a written
notice of allegations can promote predictability, transparency,
consistency, and legitimacy in a recipient's implementation of its
grievance procedures. A recipient may choose to reduce notices of
allegations to writing, particularly in cases involving more serious
conduct and more serious consequences, and in which the recipient
determines written notice is required by due process, State or local
law, or a recipient policy. Section 106.8(f) requires recipients to
maintain records documenting their response to complaints of sex
discrimination, which would include providing the notice of
allegations. However, as explained in the July 2022 NPRM, a requirement
that the notice be in writing may limit a recipient's ability to
respond promptly and in a developmentally and age-appropriate way when
a student complains of sex discrimination. 87 FR 41473. For example, in
the elementary school or secondary school context, a prompt oral
response can be a valuable teaching moment, particularly with younger
students. To allow for this important flexibility, we decline to
require written notice of the allegations for an elementary school or
secondary school in these final regulations, but note that the
requirements in Sec. 106.8(f) require a recipient to keep records
documenting the grievance procedures, including a notice of allegations
provided orally. In addition, in complaints outside the harassment
context, there may be no respondent and therefore the notice would only
need to be provided to the complainant, who presumably will already
have information about the alleged sex discrimination. In such a
situation, oral notice may be appropriate.
With respect to comments on differences between what constitutes
``sufficient information'' for purposes of Sec. Sec. 106.45(c)(1)(ii)
and 106.46(c), the Department has determined that providing detailed
information about the grievance procedures in Sec. 106.46(c)(2) would
not always be suitable in the context of providing oral notice or
notice to a young student under Sec. 106.45(c). However, as noted
above, nothing in the final regulations prevents a recipient from
providing additional information in its oral notice of allegations or
from reducing its notice to writing.
The Department appreciates the commenter's question about how a
recipient can ensure simultaneous communication with the parties when
notice of the allegations is provided orally. The final regulations
require that a recipient provide the notice of allegations to the
parties who are known, but simultaneous notice is not required. The
Department notes that Sec. 106.45(b)(1) requires a recipient to treat
complainants and respondents equitably throughout the grievance
procedures, but equitable treatment does not necessarily require
simultaneous notice, particularly when it would be inappropriate or
impractical to do so.
The Department appreciates the opportunity to clarify the timing of
the notice of allegations. Section 106.45(c) requires a recipient to
provide the notice ``[u]pon initiation of the recipient's grievance
procedures,'' which is different from the 2020 amendments, which
required notice ``[u]pon receipt of a formal complaint.'' 34 CFR
106.45(b)(2)(i). This change ensures a recipient has time to review a
complaint, determine whether the complaint is appropriate for dismissal
under Sec. 106.45(d)(1), confirm the accuracy of information to be
included in the notice, and address any safety concerns, if
appropriate. However, a recipient will need to provide the notice as
soon as these threshold issues have been resolved and the grievance
procedures have been initiated, to ensure that any delay does not
undermine a recipient's obligation to resolve a sex discrimination
complaint promptly and equitably.
In response to questions about what constitutes ``[s]ufficient
information available at the time to allow the parties to respond to
the allegations,'' the Department notes that Sec. 106.45(c) specifies
that the recipient must include the identities of the parties involved
in the incident, the conduct alleged to constitute sex discrimination
under Title IX or this part, and the date and location of the alleged
incident, if available to the recipient. A recipient may, but is not
required to, provide additional information at that time, as long as
sharing the information does not violate other obligations. The
Department declines the commenters' suggestions to narrow or broaden
the requirement to specify the ``conduct alleged to constitute sex
discrimination under Title IX,'' as the appropriate information may
vary depending on the facts of a particular complaint, how a recipient
defines prohibited conduct in its policies, and other factors. In all
cases, however, the information included must be sufficient to allow
the parties to respond to the allegations.
[[Page 33682]]
Including additional information and reducing the notice to writing
may be particularly helpful in cases involving more serious conduct and
more serious consequences. As a baseline, however, a streamlined notice
will be easier for a recipient to implement consistently and easier for
parties to understand. In addition, as noted in the July 2022 NPRM,
requiring a recipient to include detailed information in its notice of
allegations is not necessary in all cases and may prevent a recipient
from responding promptly and appropriately to all forms of sex
discrimination in the educational environment, particularly at the
elementary school and secondary school level. 87 FR 41473.
With respect to informal resolution, the Department appreciates the
opportunity to clarify that a recipient must provide the notice of
allegations upon initiation of the recipient's grievance procedures,
which necessarily precedes offering the parties any opportunity for
informal resolution. Providing the parties notice of the allegations is
essential even when resolving a case informally, to ensure the parties
can make an informed decision as to whether to agree to participate in
an informal resolution process. The Department disagrees with the
commenter's suggestion that a conflict may arise between the notice
provision in Sec. Sec. 106.45(c)(ii) and 106.44(j). The disclosure
restrictions described in Sec. 106.44(j) specify exceptions in which
personally identifiable information may be disclosed, and they include
disclosures made to carry out this part, which includes disclosures
made in accordance with Sec. Sec. 106.44, 106.45, and 106.46.
The Department appreciates the commenter's concern as to how
sending a notice of allegations to a student's parents could adversely
impact a student who feels unsafe at home. The Department recognizes
that some students feel unsafe at home or could have fears about their
safety if disclosures were made to a parent or guardian. Concerns about
abuse or threats to a student's safety should be addressed in a manner
consistent with applicable State and local laws, which may provide
protection in those circumstances. As a general matter, it is important
for parents to be involved in decision-making about a minor child, and
the Department declines to make a change to Sec. 106.45(c) in response
to the commenter's concern. We also note that nothing in Title IX or
the final regulations can derogate any legal right of a parent,
guardian, or other authorized legal representative to act on behalf of
a student. See the discussion regarding Sec. 106.6(g).
To ensure clarity and consistency with Sec. 106.45(f)(4) and
ensure that parties are notified of their rights regarding access to
the evidence, the Department has revised proposed Sec. 106.45(c)(1) to
require the notice to include a statement that the parties are entitled
to an equal opportunity to access the relevant and not otherwise
impermissible evidence or an accurate description of this evidence and
if a recipient provides a description of the evidence, the parties may
also request--and then must receive--access to the relevant and not
impermissible evidence under Sec. 106.45(f)(4)(i).
The Department also observed that the reference to additional
allegations ``about the respondent's conduct toward the complainant''
in Sec. 106.45(c)(2) did not limit these allegations to those
involving sex discrimination. The Department therefore revised this
paragraph to clarify that it applies to additional allegations ``of sex
discrimination by the respondent.''
Changes: The Department has added ``(s)'' to the end of the words
``incident,'' ``date,'' and ``location,'' to account for alleged
conduct that includes more than one incident or that occurred on more
than one date or at more than one location. The Department has added
Sec. 106.45(c)(1)(iv) stating that the notice of allegations must
include a statement that the parties are entitled to an equal
opportunity to access the relevant and not otherwise impermissible
evidence or an accurate description of this evidence and if a recipient
provides a description of the evidence, the parties may request and
then must receive access to the relevant and not otherwise
impermissible evidence. The Department revised Sec. 106.45(c)(2) to
clarify its application to additional allegations ``of sex
discrimination by the respondent'' and to change a reference to
paragraph (c)(1) to paragraph (c).
11. Section 106.45(d) Dismissal of a Complaint
General Support and Opposition
Comments: Some commenters supported proposed Sec. 106.45(d),
arguing that it would increase flexibility, reduce burden on a
recipient, and alleviate confusion for parties. For example, some
commenters included specific anecdotes of barriers that parties faced
to resolve complaints under the prior approach to dismissal.
Some commenters requested clarifications on Sec. 106.45(d),
including whether a recipient could dismiss a complaint because the
alleged conduct did not occur under the recipient's education program
or activity, or whether the recipient must use the term ``dismissal,''
which could be distressing and confusing to complainants.
Discussion: The Department agrees that Sec. 106.45(d) will provide
a recipient increased flexibility to address sex discrimination in its
education program or activity and will lead to more effective Title IX
enforcement. The Department also agrees that Sec. 106.45(d) will
streamline and clarify grievance procedures for students and
recipients.
The Department appreciates the opportunity to clarify that,
consistent with Sec. 106.45(d)(1)(iii) and (iv), a recipient may
dismiss a complaint because the alleged conduct did not occur under the
recipient's education program or activity. As explained in more detail
in the discussion of Sec. 106.11, a recipient has an obligation to
address all sex discrimination occurring under a recipient's education
program or activity. 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. See Sec. 106.11.
Further, a recipient has an obligation to address a sex-based hostile
environment under its education program or activity, even when some
conduct alleged to be contributing to that hostile environment occurred
outside of the recipient's education program or activity or outside the
United States. See id. However, if alleged conduct did not occur under
the recipient's education program or activity, neither Title IX nor
this part apply. See id.; see also discussion of Sec. 106.11.
Accordingly, a complaint that alleges such conduct would not constitute
sex discrimination ``under Title IX or this part'' and may be
dismissed. See Sec. 106.45(d)(1)(iii), (iv).
The Department declines to opine on whether a recipient's grievance
procedures should replicate terminology such as ``dismissal.'' As a
general matter, using the same terminology from final regulations could
facilitate comparisons between a recipient's published grievance
procedures and Title IX regulations, which could aid in enforcement
efforts by the Department. Nonetheless, the Department acknowledges
that different terminology may be more appropriate and understandable
depending, for example, on the age, maturity, and educational level of
a recipient's student population. Accordingly, a recipient has
discretion in how it communicates its obligations
[[Page 33683]]
under Sec. 106.45(d) to students, as long as it effectively conveys
the circumstances in which a recipient may decline to initiate or
continue a Title IX investigation or grievance procedures and otherwise
complies with Sec. 106.45(d).
Changes: None.
Section 106.45(d)(1) Permissive Dismissals
Comments: Commenters supported the permissive dismissals approach
codified in proposed Sec. 106.45(d)(1) and commended the removal of
the mandatory dismissal provision from the 2020 amendments for numerous
reasons. For example, some commenters emphasized that the 2020
amendments' mandatory dismissal requirements resulted in premature and
improper dismissal of complaints that may have uncovered actionable sex
discrimination with more investigation or inappropriately required
dismissals of complaints in which the respondent was a student, but the
complainant was no longer a student or employee.
In contrast, some commenters believed a recipient should not have
authority to dismiss a complaint under proposed Sec. 106.45(d),
arguing that it creates burdens and confusion for complainants, is
contrary to the purposes of Title IX, and could lead recipients to
eliminate alternative resolution options. Other commenters opposed
permissive dismissals under proposed Sec. 106.45(d)(1) because, they
asserted, they would threaten the First Amendment rights of students if
a recipient declined to dismiss a complaint and proceeded with
grievance procedures that punish or chill student speech. For example,
some commenters urged the Department to maintain the dismissal
requirements in the 2020 amendments that are similar to legal standards
used by courts when evaluating a motion to dismiss.
Commenters suggested modifying proposed Sec. 106.45(d)(1) to
expand or clarify the appropriate grounds for dismissal. For example,
some commenters suggested that Sec. 106.45(d) should permit the
dismissal of a complaint when there are no supporting alleged facts or
behaviors, the allegations are outside the recipient's jurisdiction,
there is not a sufficient nexus between the alleged conduct and the
recipient, the complainant is no longer participating in the
recipient's education program or activity, or the complaint is based on
false allegations or wrongful behavior by the complainant. Some
commenters sought clarification on whether the named grounds for
permissive dismissal are exhaustive and on how a recipient should
proceed in cases in which the complainant is no longer a student or
employee.
Discussion: The Department agrees that the removal of mandatory
dismissals better fulfills Title IX's nondiscrimination mandate by
supporting access to a recipient's grievance procedures. The Department
agrees that final Sec. 106.45(d)(1) will allow a recipient to
investigate and resolve complaints that are within the scope of Title
IX more effectively.
The Department understands that the mandatory dismissal provision
in the 2020 amendments may have limited the effectiveness of Title IX
enforcement, including by requiring dismissal of complaints when
recipients may not have been in a position to know whether further
investigation and resolution of potential sex discrimination would be
warranted. The Department received extensive feedback objecting to
mandatory dismissals, including from recipients, through the June 2021
Title IX Public Hearing, numerous listening sessions with stakeholders,
2022 meetings held under Executive Order 12866, and in response to the
July 2022 NPRM. After considering that feedback, the Department
determined that requiring the dismissal of complaints without the
completion of an investigation may not fully afford students the
protections of Title IX's nondiscrimination mandate. Accordingly, the
Department maintains that a recipient should not be required to dismiss
a complaint based on a determination whether the conduct alleged meets
the definition of sex discrimination at the outset of grievance
procedures. Based on the feedback described, the Department recognizes
that in many cases, it will not be clear at the beginning of an
investigation whether alleged conduct could constitute sex
discrimination and, therefore, a recipient would be required to take
additional steps to comply with its obligation under Title IX to ensure
its education program or activity is free from sex discrimination. In
these cases, a recipient's grievance procedures consistent with Sec.
106.45, and as applicable Sec. 106.46, would guide the recipient's
investigation and determination to ensure that both are thorough,
prompt, and equitable. The Department recognizes, however, that a
dismissal determination may be appropriate in a limited set of
circumstances, which are articulated in Sec. 106.45(d)(1). In those
cases, the Department's view is that a recipient should have the
discretion to dismiss the complaint and avoid conducting an unnecessary
investigation.
For these reasons, the Department disagrees with the assertion that
a recipient should not have authority to dismiss a complaint or that
dismissals of complaints are contrary to the purpose of Title IX.
Specifically, in instances in which it would be impracticable to
address alleged sex discrimination because the recipient is unable to
identify or exert control over the respondent, see Sec.
106.45(d)(1)(i) and (ii), or the alleged conduct would not constitute
sex discrimination, see Sec. 106.45(d)(1)(iii) and (iv), dismissal is
proper and consistent with the purpose of Title IX. Further, because
there are circumstances in which it would be unclear whether a
complaint satisfies these categories at the outset of an investigation,
Sec. 106.45(d) allows a recipient to comply with its obligation to
address sex discrimination by either initiating or continuing grievance
procedures to make a determination whether sex discrimination occurred,
or alternatively, allowing a recipient to address such conduct in the
manner it deems fit, such as by offering supportive measures or
informal resolution options, as appropriate, to the parties. See Sec.
106.45(d)(4)(iii).
Regarding the assertion that permissive dismissals will incentivize
recipients to eliminate informal resolution options, the Department
notes that Sec. 106.45(d) does not preclude a recipient from offering
informal resolution prior to dismissal of a complaint.
The Department also disagrees that any part of Sec. 106.45(d)
exceeds the Department's authority. Congress has authorized the
Department to issue regulations to effectuate Title IX's prohibition on
sex discrimination, 20 U.S.C. 1682, and the Supreme Court has
specifically recognized the Department's authority to adopt regulations
governing the procedures recipients use to resolve complaints of sex
discrimination. Gebser, 524 U.S. at 292. Section 106.45(d) is an
important element of a recipient's compliance with Title IX because it
helps ensure a recipient's efforts focus on the harms Title IX
prohibits and that are within a recipient's power to address.
Regarding concerns that Sec. 106.45(d) will confuse complainants,
the Department notes that a recipient is required to put its grievance
procedures in writing under Sec. 106.45(a)(1) and include information
on how to locate its grievance procedures in the notice of
nondiscrimination that is disseminated to students under Sec.
106.8(c)(1)(i)(D). Additionally, the Title IX Coordinator
[[Page 33684]]
serves as a resource to complainants and respondents who can explain
grievance procedures to parties and answer questions related to a
recipient's procedures.
We disagree that Sec. 106.45(d)(1) would undermine an individual's
free speech rights. Title IX requires a recipient to address sex-based
harassment in its education program or activity, and the final
regulations do not and cannot restrict rights protected by the First
Amendment. Additional discussion regarding the definition of sex-based
harassment and the First Amendment is provided in the discussion of
Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2) (Section I.C).
The Department declines to incorporate the commenters' suggested
additional bases for dismissal because they are either already captured
in the final regulations or would be contrary to the purpose of
dismissal. For example, some bases, such as lack of nexus or
jurisdiction may, depending on the facts, be covered by the bases
listed in Sec. 106.45(d)(1) or other provisions such as Sec. Sec.
106.45(a)(2) or 106.11. The Department also declines to add bases that
depend on evaluation of credibility or factual determinations because a
recipient would not be able to determine the veracity of a statement or
testimony without an investigation or other factfinding associated with
grievance procedures. For instance, the proper response to alleged
retaliation from any party is to initiate an investigation under a
recipient's grievance procedures, not to dismiss an underlying
complaint for which the recipient has not determined whether sex
discrimination occurred.
The Department appreciates the opportunity to clarify that the
categories for which a recipient may dismiss a complaint in Sec.
106.45(d)(1) are exhaustive. As such, unless one of the four reasons
under Sec. 106.45(d)(1) is satisfied, a recipient must implement
grievance procedures under Sec. 106.45, and as applicable Sec.
106.46, or an informal resolution process under Sec. 106.44(k), if
available and appropriate. We note that dismissals under Sec.
106.45(d)(1) are permissive, rather than mandatory, and that a
recipient could either decline, initiate, or continue grievance
procedures if any of the four reasons is satisfied. As such, the
Department disagrees that final Sec. 106.45(d) would encourage
dismissals in a manner that disfavors complainants or discourage
dismissals in a manner that disfavors respondents. In addition, a
recipient exercising its permissive dismissal of a complaint under
Title IX may still be obligated by other requirements, such as Title
VII, to investigate and address the complaint. Further, as explained in
more detail in the discussion of Sec. 106.45(d)(4), the final
regulations require a recipient that dismisses a complaint to offer
supportive measures to the complainant and respondent, as appropriate,
as well as 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, which will further mitigate
the risk of depriving any party of an educational opportunity.
The Department declines to offer more specific guidance at this
time on how a recipient should investigate a complaint made by a person
who is no longer participating in its education program or activity.
How a recipient investigates and conducts grievance procedures for such
a complaint could depend on a variety of factors, including the conduct
alleged; the identity of the respondent, if known; and whether the
respondent is participating in the recipient's education program or
activity. The Department understands that supporting recipients in the
implementation of these regulations and ensuring that members of the
recipient's community know their rights is important. The Department
will offer technical assistance, as appropriate, to promote compliance
with these final regulations, the scope of which will be determined in
the future.
Changes: None.
Section 106.45(d)(1)(i) Recipient Is Unable To Identify the Respondent
Comments: One commenter said that it would be inappropriate or
impossible to initiate grievance procedures or notice to the respondent
in any circumstance under Sec. 106.45(d)(1)(i), in part because the
respondent would be unknown.
Discussion: The Department disagrees that it would be inappropriate
or impossible for a recipient to ultimately initiate grievance
procedures or provide notice to a respondent who was unknown to the
complainant. Under Sec. 106.45(d)(1)(i), a recipient must take
reasonable steps to identify the respondent. These 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.
If a respondent's identity cannot be ascertained, a recipient
should consider, in deciding whether dismissal may be appropriate, if
there are good reasons to proceed with grievance procedures without a
respondent, such as providing closure to the complainant or addressing
circumstances independent of the identity of the respondent that may
have contributed to an incident (e.g., unsafe conditions, lack of
monitoring, inadequate policies). If the specific steps set out in
Sec. 106.45 will not be effective without a respondent, dismissal
under Sec. 106.45(d)(1)(i) would be permitted and may be proper. For
example, in Feminist Majority Foundation v. Hurley, the Fourth Circuit
held that a recipient's failure to identify or adequately address sex-
based harassment directed at students on an anonymous social media
platform may violate Title IX. 911 F.3d 674, 692-93 (4th Cir. 2018). In
its holding, the court identified several steps that the university
could have taken to address the anonymous harassment, including more
vigorously denouncing the harassing conduct, mandating a student body
assembly to discourage such harassment on social media platforms,
seeking external advice to develop policies to address and prevent
harassment, or offering counseling to the complainants. Id.
Additionally, although Sec. 106.45(d)(1)(i) allows a recipient to
dismiss a complaint if it is unable to identify the respondent after
taking reasonable steps to do so, this provision does not permit a
recipient to dismiss a sex discrimination complaint alleging that a
recipient's policy or practice discriminates based on sex simply
because no individual respondent was named in the complaint.
Changes: None.
Section 106.45(d)(1)(ii) Respondent Is Not Participating in the
Recipient's Education Program or Activity and Is Not Employed by the
Recipient
Comments: Some commenters supported Sec. 106.45(d)(1)(ii), which
permits dismissal of a complaint if the respondent is not participating
in or employed by the recipient's education program or activity.
Commenters appreciated the change from current Sec. 106.45(b)(3)(ii),
which permits dismissal of a complaint if the respondent is no longer
enrolled, because Sec. 106.45(d)(1)(ii) permits the recipient to
address an allegation even if the respondent is disenrolled or is on
recipient-approved leave.
Some commenters argued Sec. 106.45(d)(1)(ii) would exceed the
Department's authority by allowing a recipient to take action against a
third party.
In contrast, some commenters were concerned that Sec.
106.45(d)(1)(ii) may require a recipient to dismiss a
[[Page 33685]]
complaint against a respondent who is not an employee or participating
in the education program or activity, contrary to the Department's
previous recognition that a third party could create a hostile
environment on campus.
One commenter asserted that Sec. 106.45(d)(1)(ii) would encourage
a respondent to leave a recipient's education program or activity so
they would not be subject to that recipient's grievance procedures and
would permit the respondent to become a student or employee at another
recipient where they could engage in sex discrimination.
Commenters suggested language changes to proposed Sec.
106.45(d)(1)(ii), including that the Department replace
``participating'' with ``accessing,'' reference ``educational
benefits'' in addition to the recipient's ``education program or
activity,'' and replace ``and'' with ``or'' to clarify the breadth of
the provision.
Some commenters requested clarification as to whether a recipient
could restrict a respondent from attending a recipient's event if a
complaint against that respondent was dismissed under Sec.
106.45(d)(1)(ii).
Discussion: The Department agrees that allowing a dismissal only
when a respondent is no longer participating in, rather than merely
disenrolled from, a recipient's education program or activity could
require a recipient to investigate a broader range of complaints of sex
discrimination. Contrary to some commenters' assertions, a recipient
has an obligation to address allegations of sex discrimination that
limit or deny a person's participation in its education program or
activity, including when the discrimination is perpetuated by a non-
student or non-employee if it otherwise falls within the scope of Title
IX. See, e.g., Hall, 22 F.4th at 403, 405-07 (3d Cir. 2022); Simpson v.
Univ. of Colo. Boulder, 500 F.3d 1170, 1180-85 (10th Cir. 2007)
(holding that a university could be liable under Title IX for sexual
harassment by nonstudent football recruits). Final Sec.
106.45(d)(1)(ii) therefore requires a recipient to implement grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, or an
informal resolution process under Sec. 106.44(k), if available and
appropriate, if a non-student or non-employee who is participating in
the recipient's education program or activity engages in sex
discrimination.
It appears that some commenters misunderstood Sec.
106.45(d)(1)(ii) as requiring dismissal. In fact, under Sec.
106.45(d)(1)(ii), dismissal of a complaint is permitted, but not
required. Because dismissal under this category is at the discretion of
the recipient, the Department disagrees that Sec. 106.45(d)(1)(ii)
encourages respondents to disenroll and engage in sex discrimination in
another recipient's education program or activity. In addition, if a
respondent is disenrolled but otherwise participating in a recipient's
education program or activity, dismissal of the complaint on that basis
would be improper. As noted in the July 2022 NPRM, participation in a
recipient's education program or activity could include serving in an
alumni organization or as a volunteer or attending school-related
events. 87 FR 41476.
A recipient has an obligation to address sex discrimination in its
own education program or activity, but a recipient may have limited
control over a respondent who is no longer employed by the recipient or
participating in its education program or activity. Under Sec.
106.45(d)(1)(ii), a recipient may elect to implement grievance
procedures for a complaint in which a respondent is not employed by or
participating in its education program or activity, though it would not
be required to do so. As noted in the 2020 amendments, by granting
recipients the discretion to dismiss in situations in which the
respondent is no longer a student or employee of the recipient, Sec.
106.45(d)(1)(ii) appropriately permits a recipient to consider, for
example, whether a respondent poses an ongoing risk to the recipient's
community or whether a determination could provide a benefit to the
complainant or assist the recipient in complying with its obligations
under other laws related to addressing sexual misconduct involving
minor students. See, e.g., U.S. Dep't of Educ., Office of Elementary
and Secondary Education, Dear Colleague Letter on ESEA Section 8546
Requirements (June 27, 2018), https://www2.ed.gov/policy/elsec/leg/essa/section8546dearcolleagueletter.pdf (referencing the obligation of
an elementary school or secondary school to determine if there is
probable cause to believe that an employee engaged in sexual misconduct
under the Every Student Succeeds Act, 20 U.S.C. 7926); 85 FR 30290.
Additionally, continuing grievance procedures under Sec.
106.45(d)(1)(ii) may assist another recipient in meeting its
obligations under Title IX, particularly if a respondent becomes an
employee or student at another recipient. Cf. Williams, 477 F.3d at
1296 (holding that a university that recruited a student who engaged in
sexual harassment at a previous university without properly supervising
the recruit or informing him of the recipient's sexual harassment
policy may be found deliberately indifferent to sexual harassment
committed by the recruit under Title IX); 34 CFR 99.31(a)(2)
(permitting an educational agency or institution to disclose education
records to another school, school system, or postsecondary institution
in which the student seeks to enroll or is already enrolled) and 99.34
(setting forth requirements for such disclosures). In the event that
the recipient elects to dismiss such a complaint, under Sec.
106.45(d)(4)(i) and (iii) of the final regulations, it must offer
supportive measures to the complainant, as appropriate, and take other
steps to ensure that sex discrimination does not continue or recur
within the recipient's education program or activity.
The Department declines the suggestion to modify Sec.
106.45(d)(1)(ii) to allow dismissal if the respondent is no longer
``accessing education benefits'' because doing so could create
inconsistencies with the terminology used in the statute and current
and final regulations, which consistently refer to ``participation'' in
a recipient's education program or activity. See, e.g., 20 U.S.C.
1681(a); 34 CFR 106.34(a), 106.40(b). Similarly, unlike ``an education
program or activity,'' which is used throughout the statute and
regulations, the meaning of ``education benefits'' is not readily
understood by reference to Title IX, the Department's Title IX
regulations, or other State and Federal laws. The Department also
declines a commenter's suggestion to change ``and'' to ``or'' in Sec.
106.45(d)(1)(ii) because ``and'' more clearly communicates that this
dismissal option is available only when the respondent is not
participating in the education program or activity and not employed by
the recipient.
The Department appreciates the opportunity to respond to questions
about whether a recipient should restrict a respondent from attending a
recipient event if a complaint was dismissed under Sec.
106.45(d)(1)(ii) before the recipient learned that the respondent was
participating in the recipient's event. As explained in the July 2022
NPRM, 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 consistent with Sec. 106.44(f)(1)(vii) to
end such discrimination and prevent its recurrence even in the absence
of a
[[Page 33686]]
complaint. 87 FR 41447. 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 the recipient's
education program or activity. Id. Alternatively, the recipient may
reopen the complaint to initiate or resume grievance procedures.
The Department also emphasizes that unless one of the other
permissive bases for dismissal exists, a recipient must not dismiss a
complaint when a respondent is participating in a recipient's education
program or activity, such as by attending recipient events. Further,
consistent with Sec. 106.44(g)(2), a recipient may provide supportive
measures, as appropriate, that do not unreasonably burden either party,
are designed to protect the safety of the parties or the recipient's
educational environment or to provide support during the recipient's
grievance procedures or during the informal resolution process, and are
not imposed for punitive or disciplinary reasons. See discussion of
Sec. 106.44(g).
Changes: None.
Section 106.45(d)(1)(iii) Complainant Voluntarily Withdraws Any or All
of the Allegations in the Complaint
Comments: One commenter urged the Department to consider whether a
recipient would have an obligation to proceed with a Title IX
investigation when a complainant withdraws a complaint because a
private settlement was reached with the respondent, but the settlement
does not resolve a broader, ongoing safety issue on campus. The
commenter also suggested that Sec. 106.45(d)(1)(iii) be narrowed to
read: ``The complainant voluntarily withdraws all of the allegations in
the complaint.''
Discussion: The Department emphasizes that whether the conditions
for dismissal of a complaint under Sec. 106.45(d)(1)(iii) would be met
is a fact-specific inquiry. The Department acknowledges that 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 Sec.
106.45(d)(1)(iii). In other cases, there may be remaining allegations
that would independently constitute sex discrimination under Title IX.
This might occur, for example, in a complaint that involves multiple
complainants, allegations against several respondents, alleged
discrimination that occurred on more than one occasion, or as one
commenter intimated, when there is an ongoing safety issue. Final Sec.
106.45(d)(1)(iii) would leave to the recipient's discretion the
determination whether any alleged conduct that remains could, if
proven, constitute sex discrimination under Title IX. Because dismissal
could be appropriate if ``any'' of the allegations are withdrawn, or if
``all'' of the allegations have been withdrawn, the Department declines
to narrow Sec. 106.45(d)(1)(iii). The Department also notes that even
when a recipient dismisses a withdrawn complaint under Sec.
106.45(d)(1)(iii), under Sec. 106.44(f)(1)(v), the recipient also has
an obligation to consider whether other factors warrant initiating
grievance procedures to investigate alleged conduct that either
presents an imminent and serious threat to the health or safety of a
complainant or other person or prevents the recipient from ensuring
equal access based on sex to its education program or activity. See
discussion of Sec. 106.44(f)(1)(v).
Finally, upon its own review, for clarity and consistency with
other parts of the regulations, the Department has included a reference
to Title IX ``or this part.''
Changes: The Department has revised Sec. 106.45(d)(1)(iii) to
include a cross-reference to Sec. 106.44(f)(1)(v) to make clear that
if a complainant withdraws any or all of the allegations of the
complaint, the Title IX Coordinator still has an obligation to
determine whether other factors warrant initiating grievance
procedures. Additionally, to maintain consistency with other parts of
the regulations, final Sec. 106.45(d)(1)(iii) states that dismissal is
permissive if the alleged conduct, even if proven, would not constitute
sex discrimination under Title IX ``or this part.''
Section 106.45(d)(1)(iv) Conduct Alleged Would Not Constitute Sex
Discrimination Under Title IX
Comments: Some commenters argued that a recipient should be
required, rather than merely allowed, to dismiss any complaint that
does not on its face meet the Title IX definition of ``sexual
harassment.''
Some commenters specifically expressed concern about the last
sentence of Sec. 106.45(d)(1)(iv), which requires that a recipient,
prior to dismissing the complaint, make reasonable efforts to clarify
the allegations with the complainant. For example, commenters expressed
concern that this could allow an investigator to inappropriately revise
the complaint or have inappropriate ex parte communications with the
complainant.
Conversely, some commenters suggested that the Department further
strengthen the recipients' obligations under Sec. 106.45(d)(1)(iv) to
prevent dismissal solely because a complaint is not clearly
articulated, which might happen for many reasons, including because a
complainant misunderstands the legal standard, has limited English
proficiency, or has a disability.
Discussion: The Department declines commenters' suggestion to
require dismissals under Sec. 106.45(d)(1)(iv) rather than granting a
recipient discretion as to whether to dismiss such a complaint. As
discussed in the July 2022 NPRM, the procedures in Sec. 106.45 are
designed to elicit information sufficient for a recipient to make an
informed decision as to whether sex discrimination occurred and
requiring, rather than permitting, dismissal would cause a recipient to
forgo these procedures in many cases or possibly make hasty judgment
calls at the outset of a complaint. 87 FR 41477-78. In the early stages
of the complaint process, gathering more information, including from
the complainant, 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. 87 FR 41478. In other cases, a complainant may report an
allegation of sex-based harassment but lack information about severity
or pervasiveness that, for example, a recipient might receive through
evidence gathering under its grievance procedures. Id. 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. Id. 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.
For similar reasons, the Department maintains that it is necessary
and appropriate for recipients to make reasonable efforts to clarify
allegations with the complainant before dismissing
[[Page 33687]]
a complaint under Sec. 106.45(d)(1)(iv) and disagrees that such
efforts would be improper or biased against a respondent. The
requirement to clarify allegations with the complainant also would help
avoid mistaken dismissal of a complaint based on a complainant's
limited English proficiency, disability, or general misunderstanding of
what facts are relevant. The Department also disagrees that Sec.
106.45(d)(1)(iv) would permit a Title IX Coordinator or decisionmaker
to act in a biased or improper manner. The Department has appropriately
considered and addressed potential bias in Sec. 106.45(b)(2), which
requires 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 well as in Sec. 106.8(d)(2)(iii), which
requires that these persons be trained on how to serve impartially,
including by avoiding prejudgment of the facts at issue, conflicts of
interest, and bias.
Because Sec. 106.45(d)(1)(iv) makes clear that a recipient must
make an effort to clarify the allegations with the complainant before
dismissing a complaint under this provision, the Department does not
find it necessary to amend the provision to prevent dismissal solely
because a complaint is not clearly articulated.
Finally, upon its own review, for clarity and consistency with
other parts of the regulations, the Department has revised Sec.
106.45(d)(1)(iv) to include a reference to Title IX ``or this part.''
Changes: For consistency with other parts of these regulations, the
Department has revised Sec. 106.45(d)(1)(iv) to clarify that a
recipient may dismiss a complaint if the alleged conduct, even if
proven, would not constitute sex discrimination under Title IX ``or
this part.''
Section 106.45(d)(2) Notification of a Dismissal
Comments: Some commenters supported Sec. 106.45(d)(2) because it
requires notice to a respondent only if the respondent has been
notified of the allegations, and because it requires simultaneous
notice of dismissal to the parties, when appropriate.
Some commenters suggested that a recipient should not be allowed to
dismiss a complaint without providing the parties a reason for that
dismissal.
Discussion: The Department acknowledges commenters' support of
Sec. 106.45(d)(2). The Department agrees that a recipient needs to
notify a respondent of a dismissal only if the respondent has been
notified of the allegations. Notifying a respondent of the dismissal of
a complaint for which they had no prior notice would likely cause
confusion and could put a complainant at risk of retaliation or sex
discrimination, particularly in circumstances in which a complainant
withdrew a complaint due to safety concerns. Further, the Department
appreciates the opportunity to clarify that Sec. 106.45(d)(2) requires
the recipient to notify the complainant and, as applicable, the
respondent of the basis for the dismissal.
Changes: None.
Section 106.45(d)(3) Appeal From a Dismissal
General
Comments: Some commenters opposed proposed Sec. 106.45(d)(3). For
example, some commenters asserted that Sec. 106.45(d)(3), combined
with the absence of the right to appeal a recipient's final
determination under proposed Sec. 106.45, would favor complainants
over respondents (contrary to Sec. 106.45(b)(1)), would violate the
principles of equitable treatment and due process, and would cause the
burden on recipients to outweigh any benefits. Some commenters
expressed concern that the proposed regulations would not require a
recipient to provide a written appeal decision to the parties
simultaneously. Conversely, some commenters opposed Sec. 106.45(d)(3)
as burdensome on recipients and lacking necessary limitations on a
party's opportunity to appeal a dismissal, such as the bases for which
a recipient must offer an appeal.
Some commenters opposed Sec. 106.45(d)(3) to the extent that it
would allow a Title IX Coordinator, rather than a different
adjudicator, to decide an appeal. Some commenters supported provisions
that require an individual other than the initial decisionmaker to
decide the appeal.
Some commenters requested that the Department modify the proposed
dismissal requirements to replicate or align with the Clery Act,
including, for example, by requiring a recipient to include its
reasoning in its notification of the appeal's outcome.
Some commenters opposed the application of Sec. 106.45(d)(3)(i)-
(iv) and (vi) in the elementary school and secondary school context,
especially because proposed Sec. 106.45 does not otherwise require a
recipient to offer an appeal from the final determination of the
grievance procedures.
Discussion: The Department wishes to clarify that the 2020
amendments require a recipient to offer both parties an appeal from a
dismissal. 34 CFR 106.45(b)(8)(i). As discussed further below, the only
difference in these final regulations is to condition the availability
of respondent appeals from a dismissal on whether the respondent has
been notified of the complaint, and once a dismissal is appealed, the
regulations apply equally to both parties under Sec. 106.45(d)(3)(ii).
As such, any burdens associated with Sec. 106.45(d)(3) are largely the
same as those in parallel requirements in the 2020 amendments and the
benefits of providing an avenue to review a recipient's decision to
dismiss a complaint justify the asserted burden on recipients.
In response to concerns about what limitations the final
regulations would place on a party's opportunity to appeal a dismissal,
the Department clarifies that, as indicated in the July 2022 NPRM,
final Sec. 106.45(d)(3) requires a recipient to offer an appeal from a
dismissed complaint on the same bases as required under the 2020
amendments, 87 FR 41478-79, which are specifically procedural
irregularity; new evidence that was not reasonably available at the
time of the dismissal; or Title IX Coordinator, investigator, or
decisionmaker bias or conflict of interest. See 34 CFR 106.45(b)(8)(i).
Accordingly, the Department has revised Sec. 106.45(d)(3) in the final
regulations to cross-reference these bases, which are incorporated at
Sec. 106.46(i)(1).
The Department declines to require a recipient to notify the
parties in writing of the outcome of an appeal, which is consistent
with extensive stakeholder feedback that requiring written notice in
grievance procedures often prevents elementary schools and secondary
schools from handling incidents when they arise, delays their ability
to respond to sex discrimination when it occurs, and may be a more
appropriate requirement for postsecondary institutions. See 87 FR
41458; see also discussion of Sec. 106.45(c) and (f)(4). However,
nothing in these regulations prohibits a recipient from complying with
the requirements of Sec. 106.45(d)(3)(vi) in writing.
With respect to commenters who objected to requiring an elementary
school or secondary school to offer an appeal from a dismissal--
particularly because the proposed regulations did not require a
recipient to offer an appeal from a determination whether sex
discrimination occurred--the Department notes that new Sec. 106.45(i)
requires a recipient to offer an appeal process that, at a minimum, is
the same as it offers in all other comparable
[[Page 33688]]
proceedings, if any, including proceedings relating to other
discrimination complaints. Although a recipient may not be required to
offer an appeal under Sec. 106.45(i), the Department maintains that
providing a mechanism to review a recipient's decision to dismiss a
complaint promotes Title IX's goal of addressing sex discrimination and
preventing its recurrence in federally funded education programs and
activities. As explained in more detail in the discussion of Sec.
106.45(i), because Sec. 106.45 provides substantially more procedural
requirements than were previously required under Title IX regulations
(see generally Sec. 106.45(b)(1) and (2) and (f)(1)-(4)), requiring a
recipient to offer an appeal from the final determination in all sex
discrimination complaints regardless of whether a recipient offers an
appeal in comparable proceedings is unnecessary to ensure an equitable
and reliable process; and doing so may impair a recipient's ability to
resolve sex discrimination complaints in a prompt and equitable manner.
However, in the case of a complaint that has been dismissed, it is the
Department's view that an appeal is necessary because dismissal occurs
before a determination is reached and before an investigation may have
been initiated or completed. Moreover, the procedural requirements that
precede dismissal are necessarily more limited than those required at
the completion of grievance procedures. As noted in the preamble to the
2020 amendments, providing a party the opportunity to appeal a
dismissal will make it more likely that a recipient reaches sound
determinations regarding dismissal of complaints, which will give
complainants and respondents greater confidence in grievance
procedures. 85 FR 30396.
The Department is not persuaded that Sec. 106.45(d)(3) of these
final regulations violates due process and equitable treatment
principles, including Sec. 106.45(b)(1). The appeal process outlined
in the final regulations ensures that parties have an equal opportunity
to appeal dismissals and other determinations. Final Sec. 106.45(d)(3)
similarly provides both parties a right to appeal a dismissal of
allegations, except when the dismissal occurs before the respondent has
been notified of the allegations. As discussed in more detail below,
when the recipient dismisses allegations before issuing a notice of
allegations, offering the respondent an opportunity to appeal would not
be efficient or effective because the dismissal reflects the
recipient's determination that it need not determine whether the
respondent is responsible for sex discrimination on the basis of those
allegations. To the extent a recipient issues a notice of allegations
and thus requires the respondent to take some action in response, the
respondent would have an equal right to appeal a dismissal of those
allegations. Section 106.45(d)(3) is designed to fulfill Title IX's
mandate to eliminate sex discrimination in a recipient's education
program or activity, and the final regulations' framework for prompt
and equitable grievance procedures ensure transparent and reliable
outcomes for recipients, students, employees, and others participating
or attempting to participate in a recipient's education program or
activity.
The Department also clarifies that, contrary to the commenters'
concerns, Sec. 106.45(d)(3)(iii) requires a recipient to ensure that
the decisionmaker for the appeal did not take part in an investigation
of the allegations or dismissal of the complaint. Consequently, a Title
IX Coordinator would be prohibited from deciding the appeal if they
took part in the investigation or dismissal of the complaint. The
Department declines to further restrict who may decide an appeal of a
dismissal under Sec. 106.45(d)(3)(iii) for the same reasons explained
in more detail in the discussion of Sec. 106.45(b)(2). Further, as
previously noted, Sec. Sec. 106.45(b)(2) and 106.8(d)(2)(iii) protect
against bias and conflict of interest, and this includes decisionmakers
on appeal.
The Department declines to modify Sec. 106.45(d)(3) to align with
the Clery Act because many recipients covered by Title IX, including
all elementary schools and secondary schools, have no obligations
under, and may be unfamiliar with, the Clery Act. The Department notes
that nothing in the final regulations prevents a recipient from
notifying the parties of the result of the appeal and the rationale for
the result in a manner that is also consistent with the Clery Act.
The Department disagrees with assertions that requiring a recipient
to implement appeal procedures equally, rather than equitably, for the
parties would allow one party to appeal a dismissal without allowing
the other party to be notified or challenge the appeal. Section
106.45(d)(3) requires a recipient to notify the complainant and
respondent, as applicable, that a dismissal may be appealed; paragraph
(d)(3)(i) requires a recipient to notify the parties when the appeal is
filed, including the respondent if the respondent has not previously
been notified; paragraph (d)(3)(v) requires a recipient to provide the
parties a reasonable and equal opportunity to make a statement in
support of, or challenging, the outcome; and paragraph (d)(3)(vi)
requires a recipient to notify the parties of the result of the appeal
and the rationale for the result. While the application of this
provision is fact-specific, the Department observes that it would not
be appropriate for a recipient to reverse a decision related to
dismissal without providing both the complainant and respondent a
reasonable and equal opportunity to support or challenge the decision.
The Department notes that ``equal'' and ``equitable'' have
different implications and, consistent with the 2020 amendments, the
final regulations use both terms with that distinction in mind. See 85
FR 30186; see also discussion of the explanation of equitable treatment
in Sec. 106.45(b)(1). In the context of Sec. 106.45(d), the
Department uses the words ``equal'' and ``equally'' intentionally
because once a dismissal is appealed, a recipient must implement the
same appeal procedures for all parties. However, the final regulations
at Sec. 106.45(b)(1) require a recipient's grievance procedures to
treat complainants and respondents equitably, recognizing that there
are certain aspects of the grievance procedure requirements under which
equitable, but not equal, treatment is appropriate. See discussion of
Sec. 106.45(b)(1).
Changes: The Department has revised Sec. 106.45(d)(3) to cross-
reference Sec. 106.46(i)(1) and to clarify the notice of appeal, which
is described in further detail below.
Notice of the Opportunity To Appeal a Dismissal When the Respondent Has
Not Been Notified of the Complaint
Comments: Some commenters expressed confusion about whether
proposed Sec. 106.45(d) would require notifying a respondent of a
right to appeal a dismissal when the respondent has not been notified
of the complaint. For example, some commenters asserted that proposed
Sec. 106.45(d)(2) and (3) are inconsistent for this reason, and some
commenters suggested that proposed Sec. 106.45(d)(3) be altered so
that a respondent need only be notified of the opportunity to appeal if
the respondent has been notified of the complaint.
Some commenters asked the Department to consider possible
unintended consequences of notification requirements related to a
student's right to appeal a dismissal, including whether a recipient
might
[[Page 33689]]
unwittingly disclose sensitive information to an unsupportive parent,
which could harm the student.
Discussion: The Department is persuaded by commenters'
recommendation that the Department modify Sec. 106.45(d)(3) so that
whether a respondent is notified of the opportunity to appeal a
dismissal depends on whether the respondent has been notified of the
complaint and dismissal. The Department agrees that notifying a
respondent of the opportunity to appeal the dismissal of a complaint
for which they had no prior notice would likely cause confusion. The
Department also notes that once a dismissal is appealed, equal
treatment principles require a recipient to provide the respondent a
reasonable opportunity to argue that the complaint was properly
dismissed, which would be difficult if the respondent had not yet been
notified of the allegations. For these reasons, the Department has
revised Sec. 106.45(d)(3) to clarify that a recipient must notify the
respondent that the dismissal may be appealed only if the dismissal
occurs after the respondent has been notified of the allegations. If
any party appeals the dismissal, a recipient must notify all parties,
including notice of the allegations consistent with Sec. 106.45(c) if
notice was not previously provided to the respondent. The Department
declines commenters' suggestion to remove requirements related to the
respondent in Sec. 106.45(d)(3)(v)-(vi) because doing so would not
provide the respondent an equal opportunity to make a statement and
understand the result of the appeal.
The Department acknowledges commenters' concern about the
disclosure of sensitive information related to Title IX compliance. The
Department revised final Sec. 106.44(j) to prohibit the disclosure of
personally identifiable information obtained while carrying out a
recipient's Title IX obligations, with some exceptions, which is
explained more fully in the discussion of Sec. 106.44(j).
Finally, for consistency and clarity, the Department has replaced
``its'' with ``the'' in final Sec. 106.45(d)(3), ``when the appeal is
filed'' with ``of any appeal'' in final Sec. 106.45(d)(3)(i), and
``all parties'' with ``the parties'' in final Sec. 106.45(d)(3)(vi).
Changes: Proposed Sec. 106.45(d)(3)(i) through (v) has been
revised and redesignated as Sec. 106.45(d)(3)(i) through (vi) to
separate into two paragraphs the requirements regarding notice and
equal implementation of appeal procedures. Final Sec. 106.45(d)(3) now
clarifies that the recipient must notify the complainant that a
dismissal may be appealed and provide the complainant with an
opportunity to appeal the dismissal of a complaint on the bases set out
in Sec. 106.46(i)(1); that if the dismissal occurs after the
respondent has been notified of the allegations, then the recipient
must also notify the respondent that the dismissal may be appealed on
the bases set out in Sec. 106.46(i)(1). The Department has also
revised Sec. 106.45(d)(3)(i) to make clear that if a dismissal is
appealed, the recipient must notify the parties of any appeal,
including notice of the allegations consistent with Sec. 106.45(c) if
notice was not previously provided to the respondent. Finally, for
consistency and clarity, the Department has replaced ``its'' with
``the'' in final Sec. 106.45(d)(3), ``when the appeal is filed'' with
``of any appeal'' in final Sec. 106.45(d)(3)(i), and ``all parties''
with ``the parties'' in final Sec. 106.45(d)(3)(vi).
Section 106.45(d)(4) Prompt and Effective Steps To Address Sex
Discrimination After Dismissal
Comments: Some commenters expressed strong support for Sec.
106.45(d)(4)(i) because it would ensure that a complaint is handled
fairly, promptly, and effectively. Other commenters recommended that
Sec. 106.45(d)(4) be amended to provide the respondent with supportive
measures on the same basis as the complainant.
Some commenters supported proposed Sec. 106.45(d)(4)(iii) because
it would help ensure students' safe access to education. In contrast,
other commenters opposed Sec. 106.45(d)(4)(iii) because it would be
burdensome, or not necessary when a complaint is dismissed because the
recipient determined that sex discrimination did not occur. One
commenter asserted that, depending on a recipient's administrative
structure, the Title IX Coordinator might not be best positioned to
take the steps required by Sec. 106.45(d)(4)(iii). One commenter
asserted that Sec. 106.45(d)(4)(iii) would be illogical as applied to
dismissals made under paragraph (d)(1)(iv) on the grounds that a Title
IX Coordinator would be required to ensure sex discrimination does not
continue or recur after already dismissing based on a determination
that the conduct would not constitute sex discrimination.
Discussion: The Department agrees that Sec. 106.45(d)(4) promotes
fairness by ensuring that if a recipient dismisses a complaint, it
must, as appropriate, offer supportive measures to the complainant and,
as applicable, the respondent, as well as take prompt and effective
steps to ensure that sex discrimination does not continue or recur
within its education program or activity. The Department disagrees that
Sec. 106.45(d)(4) is illogical because dismissal under Sec.
106.45(d)(1)(iv) occurs before the conclusion of grievance procedures
and a recipient's determination whether sex discrimination occurred.
Consequently, when a recipient dismisses a complaint under these
provisions, it has not conclusively determined that no sex
discrimination occurred; rather, at the time of dismissal prior to a
final determination whether sex discrimination occurred, there is
insufficient evidence to support a claim of sex discrimination. Because
dismissal is not mandatory, the final regulations allow a recipient to
either implement grievance procedures to reach a determination whether
sex discrimination occurred or dismiss the complaint. Discretionary
dismissal is accompanied by a recipient's legal duty to operate its
education program or activity free from sex discrimination. See, e.g.,
87 FR 41405 (citing 20 U.S.C. 1681(a), 1682, 1221e-3, 3474; N. Haven
Bd. of Educ., 456 U.S. at 521; Cannon, 441 U.S. at 704). Accordingly,
Sec. 106.45(d)(4) allows a recipient to avoid an unnecessary
investigation if it concludes that the conditions for permissive
dismissal have been met, while requiring steps, as appropriate, to
ensure that sex discrimination does not continue or recur within its
education program or activity. For example, if an allegation of a sex-
based hostile environment is based solely on a complainant's statement
that on multiple occasions, they heard strange voices while using the
dormitory showers, a recipient may decide to investigate under its
grievance procedures to determine whether an individual is
inappropriately surveilling private facilities, such as by interviewing
witnesses or reviewing contemporaneous video footage outside the
facilities. Alternatively, a recipient may dismiss the complaint,
either because it is unable to identify the respondent after taking
reasonable steps to do so or because the facts alleged (i.e., the
presence of another person indicated by the strange voice) would not
constitute sex discrimination under Title IX. If the recipient
dismisses the complaint on those bases, it must, as appropriate, offer
the complainant supportive measures, and take other appropriate prompt
and effective steps to ensure that possible sex discrimination does not
continue or recur, such as convening a floor meeting to discuss the
allegations in a manner that retains the complainant's
[[Page 33690]]
anonymity or encouraging potential witnesses or other complainants to
come forward. See Sec. 106.45(d)(4). Consistent with Sec.
106.44(f)(1)(vii), the Department notes that a recipient has discretion
to determine what prompt and effective steps would be appropriate to
meet its obligation to operate its education program or activity free
from sex discrimination, which may include actions suggested by
commenters such as investigating whether other persons have been
subjected to sex discrimination or following up with the parties
individually to determine the effectiveness of offered supportive
measures.
The Department agrees that either a complainant or respondent may
require supportive measures, as appropriate, to restore or preserve
access to the recipient's education program or activity even if a
complaint is dismissed. See discussion of Sec. 106.44(g). Further,
Sec. 106.45(d)(4)(ii) already requires a recipient to provide
supportive measures to a respondent on an equitable basis with a
complainant because it only excepts from this obligation instances in
which it would be impracticable to offer supportive measures to a
respondent (i.e., when the recipient is unable to identify the
respondent after taking reasonable steps to do so, when the respondent
is not participating in the recipient's education program or activity
and is not employed by the recipient, or when the respondent has not
been notified of the allegations).
The Department appreciates the opportunity to clarify that a
recipient, not the Title IX Coordinator, has an obligation to ensure
that it complies with grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, including taking other appropriate prompt and
effective steps consistent with Sec. 106.45(d)(4). As explained in
more detail in the discussion of Sec. 106.8(a), the final regulations
expressly permit a recipient or a Title IX Coordinator to delegate
specific duties to one or more designees, provided the Title IX
Coordinator retains ultimate oversight over the recipient's efforts to
comply with its responsibilities under Title IX and this part and
ensure the recipient's consistent compliance under Title IX and this
part.
Changes: The Department has revised Sec. 106.45(d)(4)(ii) and
(iii) to update and clarify internal cross-references.
12. Section 106.45(e) Consolidation of Complaints
Consolidation Generally
Comments: Some commenters expressed support for proposed Sec.
106.45(e) for various reasons, including because consolidation often
accords with the recipients' and parties' wishes, and because
consolidation can yield increased efficiency and reduced burden for
recipients, parties, and witnesses. Other commenters noted that
complainants in cases involving multiple respondents tend to be
particularly vulnerable and experience heightened fear, harassment,
barriers to reporting, and case management challenges.
Some commenters stated that consolidation, when combined with the
single-investigator model, may impact the integrity of the
investigation by increasing the probability of witness collusion and
the inclusion of unsupported or weak allegations.
Other commenters asked the Department to clarify the considerations
for consolidating complaints. One commenter asked the Department to
permit recipients to consolidate cases in which pattern conduct arises
from similar, but not the same, facts or circumstances.
Discussion: The Department appreciates the range of opinions
expressed by commenters regarding consolidation. The Department agrees
that cases involving multiple parties can pose unique concerns, such as
heightened vulnerabilities and case management challenges. The
Department also agrees with commenters who asserted that consolidation
enables a recipient to coordinate cases involving multiple parties and
minimize unnecessary burdens that could interfere with a party's
ability to access their education. The Department also acknowledges
commenters' concerns about the potential impact of consolidation on the
integrity of the grievance procedures, but the Department disagrees
that the consolidation provision will cause these results.
These final regulations contain sufficient procedural protections
to safeguard against the concerns that commenters have raised. With
respect to commenters' concerns about bias and unsupported allegations,
the final regulations require that a recipient treat complainants and
respondents equitably (Sec. 106.45(b)(1)) and that any person
designated as an investigator or decisionmaker ``not have a conflict of
interest or bias for or against complainants or respondents generally
or an individual complainant or respondent'' (Sec. 106.45(b)(2)). The
final regulations also require, at Sec. 106.8(d)(2)(iii), that
investigators and decisionmakers receive training on ``[h]ow to serve
impartially, including by avoiding prejudgment of the facts at issue,
conflicts of interest, and bias.'' Although Sec. 106.8(d)(2)(iii) does
not expressly require bias training that addresses complaints involving
multiple respondents, the Department notes that nothing in these final
regulations prevents a recipient from providing such training. As
explained in the discussion of Sec. 106.8(d), the Department has
determined that Sec. 106.8(d) strikes the appropriate balance between
requiring training topics necessary to promote a recipient's compliance
with these final regulations, while leaving maximum flexibility to
recipients to choose the content and substance of training topics
beyond the topics mandated by Sec. 106.8(d).
The Department declines to categorically require or prohibit
consolidation of 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. The Department
continues to support a discretionary approach, which enables a
recipient to consider the facts and circumstances of the particular
complaints when deciding whether to consolidate, including the toll of
separate proceedings on the parties and any risks to the fairness of
the investigation or outcome.
Regarding commenters' concerns about harassment of complainants or
collusion by witnesses, these final regulations prohibit harassment
that amounts to retaliation, including peer retaliation, as set forth
in Sec. 106.2 (definitions of ``retaliation'' and ``peer
retaliation'') and Sec. 106.71. The final regulations require a
recipient to conduct an ``adequate, reliable, and impartial
investigation of complaints'' (Sec. 106.45(f)) and to assess
witnesses' credibility to the extent that credibility is in dispute and
relevant (Sec. 106.45(g)). Discretion to consolidate cases does not
relieve a recipient of its obligations to comply with the requirements
of Title IX and these final regulations.
Some commenters asked the Department to clarify the considerations
for consolidating complaints. Although the Department recognizes that
recipients and parties may desire more detailed guidelines for when and
how to consolidate, the Department declines to specify guidelines for
consolidation, aside from those listed in Sec. 106.45(e),
[[Page 33691]]
because of the necessarily fact-specific nature of the consolidation
decision. The Department wishes to clarify, however, that Sec.
106.45(e) must be interpreted to be consistent with a recipient's
obligations under FERPA, as explained more fully in the ``Consolidation
and FERPA'' subsection below. In all other respects, the final
regulations give recipients the flexibility to determine whether to
consolidate in a manner that best addresses the parties, the
complaints, and the recipient's unique structure and resources.
A commenter inquired whether recipients may consolidate complaints
in circumstances other than those outlined in Sec. 106.45(e), though
the commenter did not offer any examples for consideration. Another
commenter inquired about consolidating complaints involving pattern
conduct and similar facts or circumstances. The Department declines to
broaden Sec. 106.45(e) to expressly permit consolidation in other
circumstances, such as those involving facts or circumstances that are
similar but not the same. The Department views the guidelines set forth
in Sec. 106.45(e) as covering the complaints in which consolidation is
most likely to be fair to all parties, to create efficiencies in the
grievance procedures, and to comply with FERPA. Nothing in these final
regulations expressly prohibits recipients from consolidating in
circumstances other than those outlined in Sec. 106.45(e), and Sec.
106.45(j) expressly permits a recipient to adopt additional provisions
as long as they apply equally to the parties. Recipients, however, must
be mindful of their obligations under these final regulations (e.g.,
the obligation to conduct adequate, reliable, and impartial
investigations) and their obligations under other laws (e.g., FERPA).
The Department wishes to make clear that a recipient must comply
with the requirements set out in Sec. 106.45, and if applicable Sec.
106.46, regardless of whether the recipient chooses to consolidate
complaints or to handle them separately, including but not limited to
the requirements to ensure that any person designated as an
investigator or decisionmaker not have a conflict of interest or bias
(Sec. 106.45(b)(2)); to establish reasonably prompt timeframes (Sec.
106.45(b)(4)); to provide for the adequate, reliable, and impartial
investigation of complaints (Sec. Sec. 106.45(f) and 106.46(e)); and
to provide a process for the decisionmaker to assess a party's or
witness's credibility (Sec. Sec. 106.45(g) and 106.46(f)). The
Department also notes that, under Sec. 106.44(k), a recipient has
discretion to decide whether it is appropriate to offer an informal
resolution process; however, a recipient should be mindful that an
informal resolution agreement is binding only on the parties to that
process. In addition, as provided by Sec. 106.44(k)(1)(ii), a
recipient may decide not to offer informal resolution if the conduct
alleged presents a future risk of harm to others. Recipients are in the
best position to make decisions about processing consolidated
complaints since they may have a better understanding of how to balance
the interests of promptness, fairness to the parties, and accuracy of
adjudications in each case.
Changes: For clarity, the Department has made a non-substantive
revision to require that the consolidated complaint comply with the
requirements of ``Sec. 106.46 in addition to the requirements of this
section'' rather than comply with the requirements of ``this section
and Sec. 106.46.''
Consolidation and Complaints by One Party Against Another
Comments: Some commenters asked the Department to clarify that a
respondent may make cross-complaints against the complainant. The
commenters stated that, although false cross-complaints could be used
strategically by the respondent, the veracity of these cross-complaints
should be determined during the investigation. Other commenters asked
the Department to modify the regulations to allow for cross-complaints
for slander.
Discussion: The Department confirms that a recipient has the
discretion to consolidate the initial complaint and a subsequent
complaint or complaints, regardless of filer, under Sec. 106.45(e) (as
a type of complaint ``by one party against another party'').\53\ As
noted in the preamble to the July 2022 NPRM, if a complainant alleges
that the subsequent complaint was made in retaliation for their
original complaint, the recipient must determine whether the subsequent
complaint constitutes prohibited retaliation under Sec. 106.71. 87 FR
41543. In addition, a recipient has discretion under Sec. 106.45(d)(1)
to determine whether to dismiss the subsequent complaint, including
based on a determination that the conduct alleged, even if proven,
would not constitute sex discrimination under Title IX.
---------------------------------------------------------------------------
\53\ Commenters referred to this as a cross-complaint, though
the Department notes that this type of complaint is sometimes
referred to as a counter-complaint.
---------------------------------------------------------------------------
A party may file a complaint under the Title IX grievance
procedures, including a counter-complaint or a cross-complaint, to
pursue any allegations of sex discrimination as defined in these
regulations, including sex-based harassment and retaliation. The
Department declines to revise Sec. 106.45(e) to expressly address
complaints of slander, but nothing in these final regulations precludes
a recipient from addressing slander or other misconduct outside the
scope of Title IX under the recipient's conduct codes.
Changes: None.
Consolidation and Constitutional Concerns
Comments: Some commenters raised concerns that consolidation could
limit respondents' due process or free speech rights by, for example,
punishing individuals for ``guilt by association'' rather than for
their own conduct or by aggregating the speech or conduct of multiple
people to meet an actionable threshold. Some commenters further stated
that a recipient should not be allowed to consolidate complaints over
the objection of a respondent unless the recipient has documented and
implemented efforts to remove bias or group guilt.
Discussion: Section 106.45(e) provides that when multiple
complainants or respondents are involved, the references within
Sec. Sec. 106.45 and 106.46 to a party, complainant, or respondent
``include the plural, as applicable.'' This language is unchanged from
the 2020 amendments and, as explained in the preamble to the 2020
amendments, see 85 FR 30096 n.454, ensures that when a recipient
consolidates complaints involving multiple complainants or multiple
respondents into a single set of grievance procedures, each individual
party has each right granted to a party under Sec. 106.45, and if
applicable Sec. 106.46. The Department confirms that when a recipient
consolidates complaints, each party retains their status as an
individual, as opposed to a group or organization. A recipient must
comply with the requirements under Sec. 106.45, and if applicable
Sec. 106.46, regardless of whether the recipient chooses to
consolidate complaints under Sec. 106.45(e) or handle them separately.
Nothing in these final regulations permits a recipient to curtail a
party's rights or weigh the evidence differently due to a consolidation
of the complaints.
In response to concerns related to group-related bias, the final
regulations require that any person designated as an investigator or
decisionmaker must ``not have a conflict of interest or bias for or
[[Page 33692]]
against complainants or respondents generally or an individual
complainant or respondent'' (Sec. 106.45(b)(2)), that investigators
and decisionmakers receive training on ``[h]ow to serve impartially,
including by avoiding prejudgment of the facts at issue, conflicts of
interest, and bias'' (Sec. 106.8(d)(2)(iii)), and that a recipient
maintain records documenting the grievance procedures and the materials
used to provide training (Sec. 106.8(f)(1) and (3)). Such requirements
to eliminate bias include any potential bias towards a group in a
consolidated case. These regulations require a recipient to respond to
complaints of sex discrimination in specific ways, including by
investigating the allegations, assessing credibility, and determining
whether sex discrimination occurred, see Sec. 106.45(f)-(h). Like the
2020 amendments, see 85 FR 30274-75, these final regulations only
contemplate adjudication of allegations as to an individual respondent.
The regulations, at Sec. 106.2, define a ``respondent'' as a person--
not a group--alleged to have violated the recipient's prohibition on
sex discrimination.
Changes: None.
Consolidation and FERPA
Comments: Some commenters raised privacy and FERPA concerns in
connection with proposed Sec. 106.45(e). Other commenters sought
clarification regarding recipients disclosing evidence about all
students involved in a consolidated complaint to all parties and their
advisors, given FERPA's general prohibition on non-consensual
disclosure of information from a student's education record.
Discussion: The Department appreciates the opportunity to clarify
that Sec. 106.45(e) must be interpreted consistent with a recipient's
obligations under FERPA. A recipient must comply with its obligations
under both Title IX and FERPA unless there is a direct conflict that
precludes compliance with both laws.\54\ These final Title IX
regulations provide a recipient with the option to consolidate
complaints, but the regulations do not require a recipient to
consolidate. Accordingly, there is no direct conflict between any Sec.
106.45(e) requirement and FERPA. If consolidation of certain complaints
means that a recipient is unable to comply with FERPA, the recipient is
not permitted to exercise its discretion to consolidate those
complaints.
---------------------------------------------------------------------------
\54\ When there is a direct conflict between the requirements of
Title IX and FERPA, the GEPA override, as incorporated into Sec.
106.6(e), applies such that a recipient must comply with Title IX.
When there is a direct conflict between constitutional due process
rights and FERPA, a constitutional override applies. The interaction
between FERPA and Title IX is explained in greater detail in the
discussion of Sec. 106.6(e) in this preamble.
---------------------------------------------------------------------------
Regarding commenters' questions related to sharing evidence and the
responsibility determination with all parties to a consolidated
complaint, the Department reiterates that a recipient cannot choose to
consolidate complaints when such consolidation would give rise to FERPA
violations. The Department notes that consolidation would not violate
FERPA when a recipient obtains prior written consent from the parents
or eligible students to the disclosure of their education records.
A recipient may redact information that is not relevant to the
allegations of sex discrimination; however, a recipient must, when
redacting information, ensure that the recipient is fully complying
with its obligations under Sec. 106.45, and if applicable Sec.
106.46. For additional discussion of a recipient's ability to redact
information as part of the grievance procedures, see the discussions of
Sec. Sec. 106.6(e), 106.45(b)(5) and (f)(4), and 106.46(e)(6). The
Department notes that the regulations require a recipient to take
reasonable steps to protect the privacy of the parties (Sec.
106.45(b)(5)) and to prevent and address the unauthorized disclosure of
information (Sec. Sec. 106.45(f)(4)(iii) and 106.46(e)(6)(iii)).
The Department acknowledges that FERPA permits a recipient to
disclose personally identifiable information from a student's education
record without prior written consent if the disclosure is to a school
official who has been determined to have a legitimate educational
interest (applying the criteria set forth in the educational agency's
or institution's annual notification of FERPA rights) in such
information. See 20 U.S.C. 1232g(b)(1)(A); 34 CFR 99.7(a)(3)(iii),
99.31(a)(1)(i)(A).
Changes: None.
13. Section 106.45(f) Complaint Investigations
Comments: Commenters generally supported the requirement in Sec.
106.45(f) for adequate, reliable, and impartial investigation of
complaints because this provision lays the foundation for equitable
adjudications and requires equitable treatment of complainants and
respondents. Some commenters shared personal stories of traumatic or
difficult experiences with grievance procedures. One commenter
suggested that a recipient send detailed information from
investigations to local school boards for oversight.
One commenter expressed concern regarding a return to the 2011-2017
requirement for adequate, reliable, and impartial investigations based
on the commenter's view that this standard yielded biased outcomes and
the railroading of respondents. Another commenter asked the Department
to add a new paragraph to proposed Sec. 106.45(f) to require the
recipient to conduct grievance procedures in an impartial manner and to
ensure that the recipient makes an impartial determination regarding
responsibility. Some commenters requested clarity on what assistance
the Department will provide to a recipient for investigating Title IX
complaints.
Discussion: The Department acknowledges the commenters' support for
Sec. 106.45(f), which requires recipients to provide for adequate,
reliable, and impartial investigation of complaints. In response to
concerns that this requirement may not be sufficient, the Department
emphasizes that these final regulations contain numerous procedural
requirements for the various stages of the investigation and resolution
process to support recipients in reaching adequate, reliable, and fair
outcomes.
The Department declines a commenter's suggestion to add a new
paragraph regarding impartiality because Sec. 106.45(f) already states
that a recipient must provide for an impartial investigation. In
addition, Sec. 106.45(b)(1) requires grievance procedures to treat
complainants and respondents equitably, and Sec. 106.45(b)(2) requires
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 Department disagrees with a commenter's suggestion to require
recipients to share detailed information from investigations with
school boards for oversight. Disclosures of sensitive and personally
identifiable information with school boards may raise privacy concerns.
Privacy protections within these final regulations and FERPA may limit
a recipient's ability to disclose information from the investigation.
The Department also notes that the Office for Civil Rights has the
authority to investigate and enforce recipients' compliance with Title
IX.
The Department acknowledges the request for technical assistance.
The Department will offer technical assistance and guidance, as
appropriate, to promote compliance with the final regulations.
[[Page 33693]]
Changes: None.
14. Section 106.45(f)(1) Investigative Burden on Recipients
Comments: Some commenters expressed concern that Sec. 106.45(f)(1)
is not sufficient to ensure that the burden to conduct an investigation
that gathers sufficient evidence to determine whether sex
discrimination occurred remains on the recipient and not on the parties
or especially on the respondent. Another commenter asked the Department
to preserve Sec. 106.45(b)(5)(i) in the 2020 amendments to prevent a
recipient from improperly placing the burden of proof on respondents.
The commenter noted that some recipients inappropriately shift the
burden to students, such as in cases involving an affirmative consent
policy that requires a student prove that a sexual interaction was not
a sexual assault. One commenter asked the Department to clarify the
meaning of ``sufficient evidence,'' in light of FERPA considerations.
Discussion: Section 106.45(f)(1) retains similar language to Sec.
106.45(b)(5)(i) in the 2020 amendments that requires the recipient, and
not the parties, to bear the burden of gathering sufficient evidence to
reach a determination. The Department has substituted the legalistic
phrases ``burden of proof'' and ``burden of gathering evidence'' in the
2020 amendments with the more accessible phrase ``burden . . . to
conduct an investigation,'' but the meaning is the same: the recipient
bears the burden of conducting an investigation that gathers sufficient
evidence to make a determination whether sex discrimination occurred.
Regarding a commenter's concern that affirmative consent policies
effectively shift the burden of proof from recipients onto students,
the Department clarifies that these final regulations, consistent with
the 2020 amendments, do not permit a recipient to shift the burden to a
respondent to prove consent, nor do they permit the recipient to shift
the burden to a complainant to prove absence of consent. See 85 FR
30125. To the extent that a recipient improperly uses a consent
requirement to instruct a respondent to prove the existence of consent,
this practice would violate Sec. 106.45(f)(1). See 85 FR 30125, 30125
n.554. Consistent with the 2020 amendments, these regulations do not
adopt a particular definition of consent in connection with sexual
assault. For additional discussion of the Department's approach to
consent policies, see the discussion of the definition of ``sex-based
harassment'' in Sec. 106.2. Regardless of whether and how a recipient
defines consent in the context of sexual assault, the burden of proof
and the burden of gathering evidence sufficient to reach a
determination regarding whether sex discrimination occurred is always
on the recipient.
Regarding a commenter's request to clarify any FERPA implications
on the requirement to gather sufficient evidence, the Department
emphasizes that FERPA does not relieve a recipient of its obligation to
gather sufficient evidence to determine whether sex discrimination
occurred. For additional information regarding the interaction between
FERPA and Title IX's evidentiary provisions, see the discussions of
Sec. Sec. 106.6(e), 106.45(e), (f)(4), and 106.46(e)(6).
Changes: None.
15. Section 106.45(f)(2) Opportunity To Present Witnesses and Other
Evidence That Are Relevant and Not Otherwise Impermissible
Comments: Some commenters supported Sec. 106.45(f)(2) for
providing elementary schools and secondary schools with more flexible
and less formal approaches to present evidence and witnesses.
Some commenters suggested additional modifications or
clarifications. For example, one commenter urged the Department to
clarify that expert witnesses are permissible. Other commenters
recommended expanding Sec. 106.45(f)(2)'s applicability to any
relevant witnesses, or to all evidence and witnesses regardless of
relevance. One commenter noted that the Department should not restrict
the right to present evidence and witnesses based on a premature
evaluation of relevance. Other commenters urged that all evidence
should be presented and weighed according to corroborating evidence.
Some commenters opposed proposed Sec. 106.45(f)(2) as limiting due
process rights. One commenter urged the Department to preserve current
Sec. 106.45(b)(5)(ii), arguing that numerous courts have affirmed the
importance of parties having an equal opportunity to present evidence.
Some commenters requested clarification on whether a recipient could
exclude character witnesses, and one commenter urged the Department to
expressly prohibit them.
Discussion: The Department acknowledges commenters' support for
Sec. 106.45(f)(2), which requires a recipient to provide an equal
opportunity for the parties to present fact witnesses and other
inculpatory and exculpatory evidence that are relevant and not
otherwise impermissible. Although Sec. 106.45(f)(2) differs from Sec.
106.45(b)(5)(ii) of the 2020 amendments in some respects, it retains
the important principle that the parties have an equal opportunity to
present evidence. Section 106.45(f)(2) retains the requirement from the
2020 amendments that a recipient provide an equal opportunity for the
parties to present fact witnesses and other inculpatory and exculpatory
evidence, and Sec. 106.45(f)(2) clarifies that the witnesses and other
evidence must be relevant and not otherwise impermissible. This
relevance threshold is consistent with the numerous provisions in the
2020 amendments and in these final regulations that limit the evidence
in the grievance procedures to evidence that is ``relevant,'' as
defined in Sec. 106.2. See 87 FR 41480. The Department has revised
Sec. 106.45(f)(2) to clarify that parties do not have the right to
present impermissible evidence, as described by Sec. 106.45(b)(7),
regardless of relevance. In the July 2022 NPRM, the Department stated
that Sec. 106.45(b)(7)'s prohibition on the use of impermissible
evidence applies to the grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46. 87 FR 41470. The Department has added ``and
not otherwise impermissible'' to the regulatory text of Sec.
106.45(f)(2) to avoid any confusion.
The Department disagrees that Sec. 106.45(f)(2) limits the due
process rights of respondents, as constitutional due process does not
demand that respondents have the opportunity to present irrelevant
evidence. Cf. Crane v. Kentucky, 476 U.S. 683, 689 (1986) (``[T]he
Constitution leaves to the judges who must make these decisions `wide
latitude' to exclude evidence that is . . . `only marginally relevant.'
'' (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986))). In the
preamble to the 2020 amendments, the Department described the provision
as referring to relevant witnesses and evidence, and the Department now
makes this explicit in the final regulations. See 85 FR 30283. Because
the relevance limitation addresses the potential harm and unnecessary
use of resources caused by the introduction of irrelevant testimony and
evidence, it is important to retain the relevance limitation on the
right to present fact witnesses and evidence in these final
regulations. See 87 FR 41481. Regarding commenters' suggestion to
require evidence to be presented and weighed based on corroborating
evidence, the Department maintains that relevance provides a more
accessible and workable standard. Evidence may
[[Page 33694]]
be determined to be accurate and valid even if there is no other
evidence to corroborate it. See 85 FR 30085-86. Further, at the time
that a party seeks to present a particular witness or piece of
evidence, it may not yet be known whether corroborating evidence
exists. These final regulations, like the 2020 amendments (see 85 FR
30381), do not require corroborative evidence to reach a determination;
however, a decisionmaker may consider corroborative evidence as part of
their evaluation of the allegations.
Section 106.45(f)(2) does not govern the use of expert witnesses.
The Department has moved the provision regarding expert witnesses from
Sec. 106.45(b)(5)(ii) of the 2020 amendments to Sec. 106.46(e)(4) of
these final regulations, which applies to complaints of sex-based
harassment involving a student complainant or a student respondent at a
postsecondary institution. The Department is not requiring recipients
to allow expert witnesses because the use of expert witnesses may
introduce delays without adding a meaningful benefit to the recipient's
investigation and resolution of the case, particularly in the types of
cases governed by Sec. 106.45. The Department discusses expert
witnesses in the discussion of Sec. 106.46(e)(4). Nevertheless, a
recipient has the discretion to allow the parties to present expert
witnesses as part of investigating and resolving complaints under Sec.
106.45, provided that the recipient applies this decision equally to
the parties. See Sec. 106.45(j); 87 FR 41481.
The Department declines to categorically allow or disallow
character evidence, which aligns with the approach taken in the
preamble to the 2020 amendments. See 85 FR 30247-48. These final
regulations require that parties have the opportunity to present
relevant and not otherwise impermissible evidence (Sec. 106.45(f)(2))
and require recipients to objectively evaluate relevant and not
otherwise impermissible evidence (Sec. 106.45(b)(6)). The requirement
that character evidence be ``relevant,'' as defined by Sec. 106.2,
will exclude character evidence that will not aid the decisionmaker in
determining whether sex discrimination occurred.
The Department declines to impose further requirements on the
presentation of evidence in Sec. 106.45(f)(2) because the
circumstances vary greatly for different types of complaints. Section
106.45(g) requires recipients to provide a process for questioning
parties and witnesses to assess a party's or witness's credibility, to
the extent credibility is in dispute and relevant, and Sec.
106.45(h)(1) requires a decisionmaker to evaluate relevant and not
otherwise impermissible evidence for its persuasiveness. Consistent
with the approach taken by the 2020 amendments, the Department
maintains that the final regulations reach the appropriate balance
between prescribing detailed procedures and deferring to recipients to
tailor their grievance procedures to their unique circumstances, within
the bounds of the regulatory requirements. See 85 FR 30247. Here,
recipients have discretion as long as they provide an equal opportunity
for the parties to present fact witnesses and other inculpatory and
exculpatory evidence that are relevant and not otherwise impermissible.
Changes: The Department has revised Sec. 106.45(f)(2) to clarify
that fact witnesses and other evidence must be ``relevant and not
otherwise impermissible.''
16. Section 106.45(f)(3) Review and Determination of Relevant Evidence
Comments: Some commenters expressed general support for this
provision. Other commenters expressed opposition to proposed Sec.
106.45(f)(3), including on the ground that an investigator might not be
able to determine which evidence is relevant until all evidence has
been gathered.
Discussion: Section 106.45(f)(3) requires a recipient to review all
evidence gathered throughout the investigation and to assess that
evidence for relevance and impermissibility. The Department recognizes
that a recipient may make relevance determinations throughout the
course of an investigation; however, the Department emphasizes that a
recipient remains responsible for assessing relevance in light of all
evidence gathered. To avoid inadvertently excluding relevant evidence,
a recipient may need to revisit an earlier relevance determination and
reconsider a witness or a piece of evidence that the recipient had
previously excluded.
Changes: None.
17. Section 106.45(f)(4) Access to the Relevant and Not Otherwise
Impermissible Evidence
Sec. 106.45(f)(4)(i): Equal Opportunity To Access the Evidence or an
Accurate Description of the Evidence
Comments: Commenters supported proposed Sec. 106.45(f)(4) for a
variety of reasons. For example, multiple commenters expressed support
for sharing a summary of relevant evidence rather than the evidence
itself, which they stated would safeguard sensitive evidence and would
reduce the chilling effect on complainants who fear that disclosure of
their evidence could lead to retaliation, further harassment, or other
harms. One commenter supported not giving parties at the elementary
school and secondary school level access to all investigative
materials. Other commenters expressed support for streamlined
procedures and increased flexibility for recipients under proposed
Sec. 106.45(f)(4), noting that different approaches are appropriate
for different educational settings.
Some commenters expressed concern that proposed Sec. 106.45(f)(4)
entitles parties to a description of the relevant evidence, but not
access to the evidence itself. Commenters noted that a recipient might
intentionally or inadvertently exclude important evidence from the
description, which could harm respondents, in particular, who need to
understand the evidence against them. Commenters also raised concerns
that a description would make it challenging for parties to determine
how to respond or what additional evidence to present. Some commenters
encouraged the Department to require that at least the respondent be
able to access the evidence. Some commenters expressed concern that the
parties' lack of access to the evidence could potentially violate a
party's due process rights, citing court cases related to access to
evidence. Some commenters criticized the July 2022 NPRM for referencing
a study by Foundation for Individual Rights and Expression (FIRE),
which the commenters described as stating that respondents should be
able to view the evidence against them, without enacting that
requirement.\55\ Some commenters expressed confusion as to whether
proposed Sec. 106.45(f)(4) affects due process rights, which the 2020
amendments recognized as important. Commenters also noted that
recipients' and parties' experiences before the 2020 amendments
demonstrate that a summary of the evidence is insufficient. Some
commenters cited Goss, 419 U.S. at 581, 584, as holding that elementary
school students are entitled to an explanation of the evidence against
them, especially in proceedings that could have severe consequences.
---------------------------------------------------------------------------
\55\ The referenced study is FIRE, Spotlight on Due Process
2020-2021, https://www.thefire.org/research-learn/spotlight-due-process-2021-2022 (last visited Mar. 12, 2024).
---------------------------------------------------------------------------
Some commenters sought clarification of what information must be
included in the description of the evidence, including whether
information could be redacted.
[[Page 33695]]
Some commenters expressed concern that the summary of the evidence
could be oral, rather than written. Other commenters noted that
providing a verbal summary of the evidence does not noticeably lessen
the burden on recipients. Some commenters noted that the parties should
be able to make copies of the evidence or at least be able to access a
written investigative report, while other commenters expressed that the
investigative report requirement in the 2020 amendments is
inappropriate in the context of elementary schools and secondary
schools.
Some commenters supported the use of the ``relevant'' standard
rather than the ``directly related'' standard because ``relevant'' is
used throughout the proposed regulations and therefore avoids
confusion, and because the ``relevant'' standard will help ensure that
recipients are appropriately safeguarding sensitive or privileged
information from disclosure and not relying on it. Other commenters
expressed concern about the investigator deciding which evidence is
relevant, which some commenters argued would inject subjectivity into
the grievance procedures. Other commenters argued that because schools
are not courts and do not apply rules of evidence, schools should
provide a description of the evidence that is not limited to relevant
evidence. Others expressed concern that allowing the initial relevance
determination to be made by the same person who is the ultimate
decisionmaker would impair the decisionmaker's ability to be neutral
and fair.
Some commenters noted that providing only a description of the
relevant evidence, rather than the evidence itself, could violate a
collective bargaining agreement.
Discussion: The Department appreciates the range of opinions
expressed by commenters regarding proposed Sec. 106.45(f)(4), which
would have required recipients to provide each party with a description
of the evidence that is relevant to the allegations of sex
discrimination and not otherwise impermissible. As discussed in the
July 2022 NPRM, the Department held the tentative view that proposed
Sec. 106.45(f)(4) would streamline the investigation process while
ensuring the parties receive a description of the relevant evidence so
that they could have a meaningful opportunity to respond. 87 FR 41482.
The Department also noted that a recipient that was not required by
Sec. 106.46(e)(6) to provide access to the underlying relevant
evidence would nevertheless have the discretion to do so. Id.
After careful consideration of the comments in response to the July
2022 NPRM, the Department has decided to modify Sec. 106.45(f)(4) to
make these two options for providing access to the evidence more
explicit and to give parties the right to receive access to the
underlying evidence upon the request of any party. Under final Sec.
106.45(f)(4), a recipient must provide each party with an equal
opportunity to access the evidence that is relevant to the allegations
of sex discrimination and not otherwise impermissible, consistent with
Sec. 106.2 and with Sec. 106.45(b)(7), by providing an equal
opportunity to access the relevant and not otherwise impermissible
evidence (``evidence option'') or an accurate description of such
evidence (``description option''). If the recipient initially chooses
the description option and then a party requests access to the
evidence, the recipient is required to provide all parties with an
equal opportunity to access the underlying relevant and not otherwise
impermissible evidence. The Department has also modified final Sec.
106.45(f)(4) to include paragraphs that follow the general framework of
Sec. 106.46(e)(6), which are discussed later in this preamble.
Final Sec. 106.45(f)(4) addresses commenters' due process
concerns. The Department maintains that due process does not require
access to the underlying evidence in all instances in order for the
party to have a meaningful opportunity to respond, and also
acknowledges that the Supreme Court has not held that due process
requires access to the underlying evidence in all cases governed by
Sec. 106.45. However, providing recipients with the option to provide
either an accurate description or the underlying evidence provides
sufficient flexibility for recipients to structure their grievance
procedures to comply with due process. In addition, the parties have
the right to access the underlying evidence by requesting such access.
The Supreme Court and other Federal courts have recognized that
procedural due process requirements depend on the circumstances of each
particular case, and that due process is a flexible standard. See
Morrissey, 408 U.S. at 481; 87 FR 41456. In Goss, the Supreme Court
held that when a short suspension from a public elementary school or
secondary school is at issue, procedural due process requires, at a
minimum, notice and a meaningful opportunity to be heard. 419 U.S. at
579. In that context, Goss explained 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
Court also observed that due process may require additional procedures
for more severe sanctions. Id. at 584. Final Sec. 106.45(f)(4) gives a
recipient the flexibility to provide access to the evidence in a manner
that would satisfy Goss, while also giving all parties the right to
access the underlying evidence upon request by any party. Section
106.45(f)(4) provides recipients the flexibility and discretion,
consistent with due process, to adapt the manner of providing access to
the evidence to the circumstances at hand.
Although a recipient has flexibility in determining the manner of
providing the description or the underlying evidence, subject to the
equal opportunity requirement, Sec. 106.45(b)(8) requires the
recipient to articulate consistent principles in its grievance
procedures for determining when the recipient will initially provide a
description of the evidence or access to the underlying evidence. The
Department notes that the description option may be more appropriate
for complaints involving younger students and individuals facing less
severe consequences, allowing the recipient to streamline the
investigation process while ensuring that the parties have a meaningful
opportunity to be heard. Complaints involving high school or
postsecondary students or students facing possible expulsion are more
likely to warrant a recipient providing the parties with access to the
underlying evidence.
Regarding a commenter's request for parties to receive copies of
the evidence, the Department notes that a recipient has the discretion
to determine how to provide access to the evidence but must be mindful
of the privacy protections required by Sec. 106.45(f)(4)(iii). Section
106.45(f)(4) does not require a recipient to give the parties a
physical or electronic copy of the description or the underlying
evidence. Recipients may tailor the manner in which they present the
relevant and not otherwise impermissible evidence in light of various
factors, such as the ages of the parties, the severity of the alleged
conduct, the volume of evidence, and other case-specific or recipient-
specific factors. See 87 FR 41482. Under Sec. 106.45(f)(4), a
recipient may provide a description of the evidence orally or in
writing. Regardless of how the recipient provides the parties with
access to the evidence, a recipient must maintain records documenting
the grievance procedures for each complaint under Sec. 106.8(f)(1).
The Department wishes to
[[Page 33696]]
clarify that Sec. 106.8(f)(1) does not specify that a recipient must
maintain written records, but an oral description must be documented in
some manner to comply with Sec. 106.8(f)(1) (e.g., audio recording).
Section 106.45(f)(4) requires a recipient to provide access to a
description of the evidence or access to the underlying evidence.
Unlike Sec. 106.46(e)(6), which requires access to a written
investigative report or access to the underlying evidence, Sec.
106.45(f)(4) reflects the Department's view that a written
investigative report may not be necessary or appropriate for complaints
that do not relate to sex-based harassment involving a student at a
postsecondary institution. Recipients that choose the description
option under Sec. 106.45(f)(4) have discretion to determine the form
of a description of the evidence, considering the nature of the
complaint, the type and volume of evidence, including witness
interviews, and the age of the parties. A recipient may, but is not
required to, provide the description of the evidence in the form of a
written investigative report.
The Department disagrees with a commenter's suggestion that a
recipient could provide only the respondent with access to the
evidence. To ensure that the grievance procedures are fair and provide
all parties with a meaningful opportunity to respond to the evidence,
recipients are not permitted to provide greater access to evidence to
respondents or complainants. An equal opportunity to access the
evidence requires a recipient to provide all parties with the same
description of the evidence or to provide them with the same access to
the underlying evidence. A recipient cannot choose to provide access to
the underlying evidence to one party and to provide a description of
the evidence to the other party or parties. The requirement to provide
an equal opportunity to access the evidence also extends to the mode of
delivery, such as whether a physical or electronic copy is provided.
The requirement to provide an equal opportunity to access the evidence,
however, does not mean that a recipient must treat the parties in an
identical manner. A recipient may need to provide a particular mode of
access through auxiliary aids and services to a party with a disability
to ensure effective communication, which would not be applicable to the
other party. Similarly, for persons with limited English proficiency, a
recipient may need to provide language assistance services to only one
party.
To address commenters' concerns that the description of the
evidence could exclude important exculpatory or inculpatory evidence or
not fully describe the evidence, the Department has revised the final
regulations to require Sec. 106.45(f)(4)(i)'s description of the
evidence to be ``accurate.'' By requiring that the description of the
evidence be ``accurate,'' the Department means it must fairly summarize
the relevant and not otherwise impermissible evidence and be sufficient
to provide the parties with a reasonable opportunity to respond,
including a meaningful opportunity to prepare arguments, contest the
relevance of evidence, and present additional evidence for
consideration. The Department declines to specify what must be included
in the description of evidence, other than that it must be accurate and
sufficient to provide a reasonable opportunity to respond. The
Department also reminds recipients that Sec. 106.45(f) requires an
investigation to be adequate, reliable, and impartial, and Sec.
106.45(b)(2) further requires that any person designated as an
investigator not have a conflict of interest or bias, including as
reflected in a description of the evidence. In addition, under final
Sec. 106.45(f)(4)(i), a party has the right to receive access to the
underlying evidence, and thus a party does not need to rely solely on a
description of the evidence that the party believes to be incomplete.
In response to commenters' concerns that providing a description of
the evidence could expose recipients to liability, the Department notes
that a recipient is free to decide in all cases to provide the
underlying evidence, rather than a description of the evidence, under
final Sec. 106.45(f)(4). Regarding commenters' criticism that the
Department referenced a FIRE study in the July 2022 NPRM regarding
access to the evidence without implementing such a requirement, the
Department notes that the July 2022 NPRM cited this study only as
recent research regarding the standard of proof used by postsecondary
institutions. See 87 FR 41485. The Department acknowledges that in
FIRE's study, which reviewed and scored ``procedural safeguards'' in
disciplinary proceedings at postsecondary institutions, institutions
did not earn any points in FIRE's scoring scheme for providing parties
with access solely to a summary of the evidence.\56\ However, Sec.
106.45(f)(4)(i) requires a recipient to do more than merely provide a
summary: if a recipient chooses to provide a description of the
evidence, that description must be ``accurate,'' meaning it must fairly
summarize the relevant and not otherwise impermissible evidence and be
sufficient to provide the parties with a reasonable opportunity to
respond, including a meaningful opportunity to prepare arguments,
contest the relevance of evidence, and present additional evidence for
consideration. Further, under Sec. 106.45(f)(4)(i), if a recipient
chooses to provide a description, the parties have the right to
request--and then must receive--access to the underlying evidence. Not
only do the final regulations require several features that FIRE's
study recommended, even FIRE's study recognizes that access to evidence
is only one kind of procedural safeguard. The final regulations require
several procedural safeguards that promote fair and reliable grievance
procedures.
---------------------------------------------------------------------------
\56\ FIRE, Spotlight on Due Process 2020-2021, at 7-8, 10
https://www.thefire.org/research-learn/spotlight-due-process-2021-2022 (last visited Mar. 12, 2024).
---------------------------------------------------------------------------
The Department appreciates commenters' support for use of the
``relevant'' standard in Sec. 106.45(f)(4) and also acknowledges
commenters' concerns. The 2020 amendments distinguish between evidence
that is directly related to the allegations, to which the recipient
must provide the parties with access (Sec. 106.45(b)(5)(vi)), 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 preamble to the 2020 amendments clarifies that a recipient must
disclose to the parties any evidence related to a complainant's sexual
predisposition or prior sexual behavior that is directly related to the
allegations, see 85 FR 30428, even though the 2020 amendments required
such evidence to generally be excluded from an investigative report and
from questioning as irrelevant, see 34 CFR 106.45(b)(6)(i), (ii); 85 FR
30304. OCR received feedback during the June 2021 Title IX Public
Hearing that the distinction between ``directly related'' and
``relevant'' is confusing and not well-delineated. In the July 2022
NPRM, the Department proposed merging these standards by defining
``relevant'' in Sec. 106.2 to mean evidence ``related to the
allegations of sex discrimination'' and explaining that evidence is
``relevant'' when it may aid a decisionmaker in determining whether the
alleged sex discrimination occurred. 87 FR 41419. These final
regulations require access to a similar scope of evidence with one
exception: unlike the 2020 amendments, these final regulations prohibit
a recipient from disclosing evidence of the complainant's sexual
interests and
[[Page 33697]]
prior sexual conduct, except as narrowly permitted by Sec.
106.45(b)(7)(iii). The expansive definition of ``relevant,'' combined
with the additional requirement that a description of the evidence be
``accurate,'' addresses commenters' concern that recipients would have
too much discretion to determine relevance; that it would lead students
and faculty to censor their speech; and that it would impair a
decisionmaker's ability to be neutral and fair. For further explanation
of the definition of ``relevant,'' see the discussions of Sec. Sec.
106.2 and 106.46(e)(6).
With respect to commenters' concerns that providing a description
of the relevant evidence could violate a collective bargaining
agreement, the Department notes that, under Sec. 106.45(f)(4),
recipients have the option to provide the underlying relevant and not
otherwise impermissible evidence instead of a description and that
parties have the right to receive access to this evidence upon the
request of any party.
Changes: The Department has modified Sec. 106.45(f)(4) to
expressly identify two options for a recipient to provide each party
with an equal opportunity to access the relevant and not otherwise
impermissible evidence--namely, to provide access to the evidence, or
to provide an accurate description of such evidence. In addition, the
Department has added a sentence to final Sec. 106.45(f)(4)(i) to state
that if the recipient initially chooses the description option and then
a party requests access to the evidence, the recipient is required to
provide the parties with an equal opportunity to access the underlying
relevant and not otherwise impermissible evidence. The Department has
also restructured Sec. 106.45(f)(4) to clarify that both the evidence
option and the description option require a recipient to give the
parties a reasonable opportunity to respond.
Sec. 106.45(f)(4)(ii): Reasonable Opportunity To Respond to Evidence
Comments: Commenters asked for clarification of what constitutes a
reasonable opportunity to respond. Some commenters asked for examples,
and some asked whether what is reasonable can vary based on specific
factors such as the amount of evidence. Other commenters requested
clarity on whether the opportunity to respond would take place at the
end of the investigation or at another time.
Discussion: The parties must be given a reasonable opportunity to
respond to the evidence or to the accurate description of the evidence
under Sec. 106.45(f)(4)(ii). When properly implemented, both the
evidence option and the description option give parties a reasonable
opportunity to respond. In determining reasonableness, a recipient must
ensure that the parties can meaningfully respond to the evidence. See
Goss, 419 U.S. at 579 (noting that in the context of short suspensions
from public elementary schools and secondary schools, procedural due
process requires, at a minimum, notice and a meaningful opportunity to
be heard). Because a reasonable timeframe accommodates the nature and
volume of evidence, which can vary greatly based on the allegations in
a complaint, the Department declines to provide examples. The
opportunity to respond to the evidence would generally take place at
the end of the investigation after the evidence is gathered, but
recipients have the discretion to permit the parties to respond at
another point in the investigation.
Changes: The Department has revised Sec. 106.45(f)(4)(ii) to make
it clear that a recipient must provide a reasonable opportunity to
respond to the evidence or to the accurate description of the evidence
described in Sec. 106.45(f)(4)(i).
Sec. 106.45(f)(4)(iii): Unauthorized Disclosures
Comments: Some commenters expressed concerns about protecting
student privacy while allowing the parties access to a description of
the evidence. Multiple commenters expressed concern that sharing
information about a student's complaint will open the student up to
further harassment or retaliation, especially if the respondent is an
employee of the recipient. Multiple commenters emphasized that sharing
the party's evidence (even a description of the evidence) with other
parties could have a significant chilling effect on students'
willingness to report.
Discussion: The Department appreciates commenters' concerns
regarding the impacts of disclosing relevant evidence to parties,
regardless of whether the recipient uses the description option or
evidence option. Access to the evidence in some format, whether through
access to the underlying evidence or access to an accurate description
of the evidence, is necessary for fair grievance procedures and
required under these regulations. But in order to minimize these
impacts, the Department is persuaded that the final regulations must
require recipients to take reasonable steps to prevent and address the
parties' unauthorized disclosure of information, so as to prevent a
chilling effect on reporting, fear of retaliation, harassment, or other
harmful consequences. The unauthorized disclosure of sensitive
information could threaten the fairness of the grievance procedures 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 recipient must take, as what is reasonable to prevent
unauthorized disclosure may vary depending on the circumstances. As
discussed in the July 2022 NPRM with respect to proposed Sec.
106.46(e)(6)(iii), see 87 FR 41501, in some circumstances, it may be
sufficient to inform the parties of the recipient's expectations for
how the parties should safeguard the evidence and the consequences for
unauthorized disclosures, whereas other circumstances may warrant
software that restricts further distribution. Under the grievance
procedures applicable to postsecondary institutions for complaints of
sex-based harassment involving a student complainant or student
respondent, Sec. 106.46(e)(6)(iii) addresses unauthorized disclosures,
and the Department is adding an analogous provision at Sec.
106.45(f)(4)(iii) of the final regulations.
In both Sec. Sec. 106.45(f)(4)(iii) and 106.46(e)(6)(iii), the
Department is adding a sentence to make clear that disclosures of
information and evidence for purposes of administrative proceedings or
litigation related to the complaint of sex discrimination are
authorized. The Department does not intend to limit--and does not view
Sec. Sec. 106.45(f)(4)(iii) or 106.46(e)(6)(iii) as limiting--the
parties' ability to disclose information obtained solely through the
grievance procedures as part of exercising their legal rights, such as
the right to file an OCR complaint and the right to initiate (or defend
against) a related legal proceeding. Additional discussion related to
unauthorized disclosures in connection with Sec. 106.46(e)(6)(iii) is
addressed in that section of this preamble.
Changes: The Department has added Sec. 106.45(f)(4)(iii), which
requires a recipient to take reasonable steps to prevent and address a
party's unauthorized disclosure of information and evidence obtained
solely through the grievance procedures. The provision also states that
for purposes of paragraph (f)(4)(iii), disclosures of such information
and evidence for purposes of administrative proceedings or litigation
related to the complaint of sex discrimination are authorized.
[[Page 33698]]
Sec. 106.45(f)(4) and FERPA
Comments: Some commenters questioned how a recipient could share
relevant evidence with the parties in a manner consistent with FERPA.
Some commenters noted that recipients have at times cited FERPA as a
reason to withhold some evidence obtained in the investigation or the
outcome of the investigation. Some commenters requested clarification
regarding what information about grievance procedures will be shared
with parents of elementary school students.
Discussion: The Department appreciates the opportunity to clarify
the interaction between FERPA and the Title IX provisions requiring
disclosure of evidence. FERPA and its implementing regulations define
``education records'' as, with certain exceptions, records that are
directly related to a student and maintained by an educational agency
or institution, or by a person acting for the agency or institution. 20
U.S.C. 1232g(a)(4); 34 CFR 99.3.
Under FERPA, a parent or eligible student has the right to inspect
and review the student's education records with certain limitations. 20
U.S.C. 1232g(a)(1); 34 CFR part 99, subpart B. In the context of
disciplinary proceedings, the Department has previously recognized that
under FERPA, ``a parent (or eligible student) has a right to inspect
and review any witness statement that is directly related to the
student, even if that statement contains information that is also
directly related to another student, if the information cannot be
segregated and redacted without destroying its meaning.'' 73 FR 74832-
33.\57\ These final Title IX regulations, at Sec. Sec. 106.45(f)(4)
and 106.46(e)(6), require a recipient to provide the parties with an
equal opportunity to access the evidence that is relevant to the
allegations of sex discrimination and not otherwise impermissible. The
Department acknowledges that certain evidence that is relevant to the
allegations may not necessarily be directly related to all parties for
purposes of FERPA. While there may be instances in which unrelated
material could be redacted without compromising due process, to the
extent that these Title IX regulations require disclosure of
information from education records to the parties (or their parents,
guardians, authorized legal representatives, or advisors) that would
not comply with FERPA, the constitutional override and the GEPA
override apply and require disclosure of evidence under Sec. Sec.
106.45(f)(4) and 106.46(e)(6) to the parties and their advisors.\58\
See New York, 477 F. Supp. 3d at 301-02 (upholding a similar approach
to the interaction between FERPA and Title IX in the 2020 amendments
against an arbitrary and capricious challenge). With respect to the
rights of parents, Sec. 106.6(g) states that nothing in Title IX 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. Additional discussion related
to the interaction between FERPA and the evidentiary disclosures
required by the Title IX regulations is addressed in the discussion of
Sec. 106.46(e)(6).
---------------------------------------------------------------------------
\57\ The Department made this statement in its FERPA rulemaking
in response to concerns about impairing due process in student
discipline cases.
\58\ The constitutional override is explained in greater detail
in the discussion of Sec. 106.6(e).
---------------------------------------------------------------------------
Changes: None.
18. Section 106.45(g) Evaluating Allegations and Assessing Credibility
Comments: Commenters supported proposed Sec. 106.45(g) for many
reasons. For example, some commenters supported it because it would
provide needed flexibility for elementary schools and secondary schools
and make it easier to establish credibility.
Some commenters opposed proposed Sec. 106.45(g) because it would
permit methods of assessing credibility other than cross-examination,
it would decrease uniformity of process across recipients, or it might
interfere with parties' due process rights. Some commenters were
concerned that it requires elementary schools and secondary schools to
develop a formalized hearing process, which could burden recipients.
Some commenters asserted proposed Sec. 106.45(g) would be too
prescriptive for cases of sex discrimination not involving allegations
of sex-based harassment.
One commenter was concerned about removing the language from the
2020 amendments regarding the right of elementary school and secondary
school students to submit questions to be asked of the other party and
witnesses.
One commenter asked the Department to add language prohibiting a
recipient from using a live hearing or cross-examination to assess
credibility under proposed Sec. 106.45(g) because they are not
appropriate for elementary school and secondary school students.
Another commenter asked the Department to require a live hearing and
cross-examination at the elementary school and secondary school levels
because respondents face severe and long-lasting consequences. One
commenter suggested that instead of applying proposed Sec. 106.45(g)
to complaints of sex discrimination involving elementary school and
secondary school students, the Department should develop a process
based on State anti-bullying laws.
Some commenters were concerned that the types of questions asked
when assessing credibility could make the process traumatizing for
complainants.
Some commenters sought supplemental guidance on the phrase
``provide a process'' in proposed Sec. 106.45(g), including how to
implement it effectively for students of different ages, what process
would be required under proposed Sec. 106.45(g), and whether review of
the evidence would be sufficient to satisfy proposed Sec. 106.45(g).
Discussion: The Department acknowledges the commenters' support for
proposed Sec. 106.45(g). The Department understands that some
commenters would prefer the Department maintain the requirement in
Sec. 106.45(b)(6)(ii) from the 2020 amendments that each party must be
afforded the opportunity to submit written relevant questions to be
asked of the other party and witnesses and were concerned about
removing that right for elementary school and secondary school
students, and other commenters were concerned that requiring recipients
to create a process for assessing credibility was unnecessary, not
beneficial, and could lead to lack of uniformity. After carefully
considering the views expressed by the commenters, the Department
maintains the position articulated in the July 2022 NPRM that, in order
to fully effectuate Title IX's nondiscrimination mandate, it is
necessary to require recipients to create a process for assessing the
credibility of parties and witnesses under Sec. 106.45(g), to the
extent credibility is both in dispute and relevant to evaluating one or
more allegations of sex discrimination. See 87 FR 41482. The
requirements of Sec. 106.45 apply to complaints alleging all forms of
sex discrimination, that is they are not limited to sex-based
harassment, and the requirements apply to all types of recipients. In
light of these variations, the Department has determined that it is
appropriate to provide recipients flexibility and discretion to
structure the process for assessing credibility, taking into account
due process, their administrative structure, their education community,
and applicable Federal and State case law and State or local legal
requirements. See id.
[[Page 33699]]
The Department disagrees that providing recipients with this
discretion is arbitrary and capricious or does not adequately protect
due process. As explained in the discussions of Sec. 106.46(f)-(g) in
the July 2022 NPRM and the preamble to the 2020 amendments, what
constitutes a meaningful opportunity to be heard depends on the
specific circumstances. See 87 FR 41504; 85 FR 30327. The requirement
in Sec. 106.45(g) is designed to provide recipients with a way to
assess credibility without engaging in a quasi-legal process that may
be inappropriate in some circumstances, including at the elementary
school and secondary school levels due to the age or education level of
the parties. The Department maintains that requiring recipients to
design a process allowing the decisionmaker to question parties and
witnesses to assess credibility, but giving them discretion over how
the process works, will provide recipients with necessary flexibility
while enabling them to fully effectuate Title IX's nondiscrimination
mandate and provide all parties with a meaningful opportunity to
respond to allegations. The Department notes, however, that a recipient
may be required to provide additional process in individual cases to
satisfy constitutional due process. Moreover, anyone who believes that
a recipient has failed to comply with Sec. 106.45(g), including by
abusing its discretion, may file a complaint with OCR. For additional
discussion of OCR's enforcement authority, see the discussion of OCR
Enforcement (Section VII).
In Mathews v. Eldridge, the Supreme Court held that determining the
adequacy of due process procedures involves a balancing test that
considers the private interest of the affected individual, the risk of
erroneous deprivation and benefit of additional procedures, and the
government's interest, including the burden and cost of providing
additional procedures. 424 U.S. at 335, 349. Following the analysis in
Mathews, the Department considered a number of factors in determining
whether to require a decisionmaker rather than the parties themselves
to ask questions, including the interests of the respondent, the goal
of ensuring that Title IX grievance procedures are prompt and
equitable, providing the parties with a meaningful opportunity to be
heard and respond, producing reliable outcomes, and the potential
administrative burden additional procedural requirements would place on
recipients. The Department recognizes that the interests of the
respondent will vary depending on the education level and the severity
of the potential disciplinary sanctions. However, the Department
maintains that requiring the decisionmaker to question a party or
witness to adequately assess that party's or witness's credibility
along with the other requirements in Sec. 106.45, including an
adequate, reliable, and impartial investigation of complaints, provides
the respondent with a meaningful opportunity to be heard and respond
and will produce reliable outcomes. The Department has no reason to
conclude that requiring additional procedures in all cases, like
permitting the parties to ask questions, would significantly improve
the reliability of the outcome of the grievance procedures. In
addition, permitting party questioning would increase the
administrative burden on recipients, especially elementary schools and
secondary schools. Given the age of the students they serve, elementary
school and secondary school recipients would have to be more actively
involved in facilitating the process of obtaining the written questions
and answers from the parties and would need to work with the parties'
parents as to facilitate this process, which would impact their ability
to respond promptly to all complaints of sex discrimination. Weighing
these factors, the Department reasonably concluded that questioning by
a decisionmaker, and not the parties themselves, provides for a fair
process that will produce reliable outcomes in investigations of Title
IX violations. Nothing in Title IX or these regulations prevents
recipients from implementing additional processes for certain types of
proceedings that, in line with the Mathews balancing test, raise due
process implications.
The Department notes that nothing in the final regulations
precludes a recipient, including an elementary school or secondary
school, from using a process that permits the parties to submit written
questions like that required under Sec. 106.45(b)(6)(ii) in the 2020
amendments to satisfy its obligations under Sec. 106.45(g) or from
providing other procedures in addition to questioning by the
decisionmaker.
In addition, Sec. 106.45(g) is consistent with permitting a
recipient to choose a single-investigator model instead of holding a
live hearing with questioning by an advisor because Sec. 106.45(g)
provides recipients with discretion to design a process for assessing
credibility that does not include a live hearing with questioning by an
advisor. For additional discussion of the requirements for assessing
credibility in complaints of sex-based harassment involving student
complainants or student respondents at postsecondary institutions, see
the discussion of Sec. 106.46(f) and (g). For additional discussion of
the single-investigator model, see the discussion of Sec.
106.45(b)(2).
In response to commenters who found proposed Sec. 106.45(g) vague
or confusing, the Department has revised the language to clarify that
the process required under Sec. 106.45(g) is one that enables the
decisionmaker to question parties and witnesses to adequately assess
the party's or witness's credibility. This revision addresses the
confusion the commenters identified by making clear that the process
for assessing credibility must include questioning parties and
witnesses and thus reviewing the evidence would not be sufficient to
satisfy a recipient's obligations under Sec. 106.45(g). The Department
notes however that nothing in the final regulations requires a
recipient to use the type of process described in Sec. 106.46(f) or
(g) to satisfy its obligations under Sec. 106.45(g), although a
recipient is permitted to do so if it so chooses.
In response to commenters who suggested that credibility may be at
issue in most cases, the Department cannot opine on the percentage of
sex discrimination complaints in which credibility is at issue. The
Department notes that Sec. 106.45(g) applies to all complaints of sex
discrimination, not just sex-based harassment complaints, and that the
potential number or percentage of impacted cases would not dictate the
appropriateness of this provision. At least one Federal court has
recognized that credibility disputes may be more common in sexual
assault or harassment cases than other types of cases that recipients
handle. See Univ. of Cincinnati, 872 F.3d at 406. The Department
declines to define credibility, but notes that at least one Federal
court has explained that cases in which credibility is in dispute and
relevant to evaluating the allegations of sex discrimination would
include those in which the recipient's determination relies on
testimonial evidence, including cases in which a recipient ``has to
choose between competing narratives to resolve a case.'' Baum, 903 F.3d
at 578, 584.
Similar to the position taken by the Department in the preamble to
the 2020 amendments, the Department maintains that it is appropriate
not to require live hearings or questioning by an advisor for all
complaints of sex discrimination, including complaints of sex-based
harassment involving elementary school
[[Page 33700]]
and secondary school students. See 85 FR 30363-64. The Department
maintains the view that because elementary school and secondary school
students are usually under the age of majority and generally do not
have the same developmental ability or legal rights as adults to pursue
their own interests, it is not appropriate to require live hearings or
questioning by an advisor under Sec. 106.45(g). See 85 FR 30364.
The Department notes, however, that nothing in the final
regulations precludes an elementary school or secondary school or a
postsecondary institution in cases other than sex-based harassment
involving a student party from choosing to use a live hearing either
with or without questioning by an advisor. As explained in the
discussion of Sec. 106.46(g), the Department maintains its general
position from the 2020 amendments that if an elementary school or
secondary school or a postsecondary institution in cases other than
sex-based harassment involving a student party chooses to hold a live
hearing as part of its process for questioning parties and witnesses
under Sec. 106.45(g), it is not subject to the live hearing procedures
in Sec. 106.46(g) that apply to postsecondary institutions for cases
of sex-based harassment involving a student party because the
Department intends to leave such recipients with flexibility to apply
live hearing procedures that fit the needs of their educational
environment and the nature of the allegations. See 85 FR 30365. This is
consistent with the Department's position in the 2020 amendments
acknowledging that, for example, an elementary school and secondary
school recipient could determine that their education community is best
served by holding live hearings for high school students, for students
above a certain age, or not at all. See 85 FR 30365. In addition,
recipients located in a jurisdiction where applicable law requires live
hearings for certain disciplinary matters may be required to hold a
live hearing under those laws.
In addition, the Department notes that the final regulations at
Sec. 106.45(j) require that any additional provisions adopted by a
recipient as part of its grievance procedures for handling sex
discrimination must apply equally to the parties. This includes any
provision a recipient adopts regarding how it conducts a live hearing.
The Department disagrees that proposed Sec. 106.45(g) is too
prescriptive for cases of sex discrimination that do not involve
allegations of sex-based harassment and declines to narrow its
application. The Department notes that a recipient is only required to
use the process implemented under Sec. 106.45(g) to the extent
credibility is in dispute and relevant to evaluating the allegations of
sex discrimination. The Department also emphasizes that Sec. 106.45(g)
gives recipients flexibility to design their own process, and nothing
in the final regulations requires a recipient to use the type of
process described in Sec. 106.46(f) to satisfy its obligations under
Sec. 106.45(g), although they are not prohibited from doing so if they
so choose.
The Department declines to replace proposed Sec. 106.45(g) with a
process based on State anti-bullying laws, but notes that nothing in
the final regulations precludes a recipient from consulting its State
anti-bullying laws when designing a process for the decisionmaker to
question parties and witnesses to assess credibility to satisfy its
obligations under Sec. 106.45(g). The Department also notes that
nothing in the final regulations precludes a recipient from using an
existing process to satisfy its obligations under Sec. 106.45(g) to
assess credibility, if that process otherwise satisfies Sec.
106.45(g).
The Department acknowledges that recipients may want to take into
account the age and developmental level of their students when
designing a process to comply with their obligations under Sec.
106.45(g). The Department declines to provide specific information
regarding how to design such a process, but will offer technical
assistance and guidance, as appropriate, to promote compliance with
these final regulations.
Regarding concerns that the process for assessing credibility can
be traumatizing for complainants due to the nature of the questions,
the Department notes that any questions a decisionmaker asks of parties
and witnesses as part of the process for assessing credibility under
Sec. 106.45(g) must comply with the evidentiary standard applicable to
all evidence in the grievance procedures, that they be relevant and not
otherwise impermissible under Sec. Sec. 106.2 and 106.45(b)(7).
Changes: The Department has revised Sec. 106.45(g) to clarify that
it covers questioning parties and witnesses to aid in evaluating
allegations and assessing credibility and that the process required
under Sec. 106.45(g) is one that enables the decisionmaker to question
parties and witnesses to adequately assess a party's or witness's
credibility.
19. Section 106.45(h)(1) Standard of Proof and Directed Question 4
Comments: The text below documents examples of the comments
received and incorporates responses to Directed Questions 4.a.-c.,
about proposed Sec. 106.45(h)(1) from the July 2022 NPRM.
Standards of Proof
Comments: Some commenters supported the requirement in proposed
Sec. 106.45(h)(1) that recipients use the preponderance of the
evidence standard to determine whether sex discrimination occurred
unless the recipient uses the clear and convincing evidence standard of
proof in all other comparable proceedings. Commenters appreciated that
proposed Sec. 106.45(h)(1) honors the diversity of recipients' student
codes of conduct and gives recipients the flexibility to choose one
standard of proof for all comparable proceedings instead of mandating
the uniform use of one standard, and that it allows recipients to treat
student and employee misconduct as required by State law and
contractual obligations.
Some commenters supported the use of the preponderance of the
evidence standard for multiple reasons and urged the Department to
mandate its use in all Title IX investigations. Some commenters
asserted that the preponderance of the evidence standard best promotes
compliance with Title IX because it is less burdensome than the clear
and convincing evidence standard and balances the interests of the
parties by giving equal weight to the evidence supporting each party.
Some commenters supported the use of the preponderance of the evidence
standard because it is more easily understood by decisionmakers and
therefore more likely to be applied correctly. Some commenters opined
that the preponderance of the evidence standard is most appropriate
because it is the standard used by courts in civil rights cases and
other civil proceedings, has long been the standard used by most
recipients for Title IX claims, and has been recommended for use in
student disciplinary matters for nearly 30 years. Other commenters
noted that different evidentiary standards are appropriate in different
contexts, and here, when there is not the same risk of harm as in a
criminal proceeding and both parties have equal stakes in the outcome
(often, the ability to continue attending the school of their choice),
the comparatively lower standard of a preponderance of the evidence is
appropriate. Other commenters argued that using the preponderance of
the evidence standard would encourage complainants to come forward to
report complaints because it would give them more trust in the process,
which they said was particularly important for complainants from groups
that have
[[Page 33701]]
historically been less able to trust adjudicatory proceedings,
including students of color and LGBTQI+ students. By contrast,
commenters stated, the 2020 amendments' permission to use a higher
standard of proof, combined with other legalistic requirements, had
suggested that recipients would not believe complainants, and thus
deterred complainants from coming forward.
Some commenters objected to proposed Sec. 106.45(h)(1) based on a
misunderstanding of what the proposed provision would require and what
the 2020 amendments required. Some thought Sec. 106.45(h)(1) would
mandate use of the preponderance of the evidence standard of proof and
that the 2020 amendments required use of the clear and convincing
evidence standard; other commenters misunderstood the 2020 amendments
to require the beyond a reasonable doubt standard. Commenters who had
these misunderstandings opposed proposed Sec. 106.45(h)(1) because
they believed that requiring the preponderance of the evidence standard
would violate respondents' due process rights, improperly place the
burden on the respondent to demonstrate that no discrimination
occurred, and increase litigation against recipients by respondents
alleging that their rights were violated.
Some commenters objected to proposed Sec. 106.45(h)(1) because
they asserted that the risks of harm to the respondent are so
significant that the standard must be higher than a preponderance of
the evidence. For more on what commenters said regarding the risks of
harm for respondents, see the discussion of Due Process Generally
above. Some of these commenters urged the Department to require
recipients to adopt a clear and convincing evidence standard in all
instances, while some of these commenters urged the Department to
require use of the beyond a reasonable doubt standard in all instances.
Some commenters raised concerns that proposed Sec. 106.45(h)(1) would
reduce confidence in the Title IX system and chill speech.
Some commenters urged the Department to require recipients to use a
sliding scale approach whereby a higher standard of proof is required
to impose more severe consequences. Similarly, some commenters
suggested that the standard of proof should vary based on the severity
of the alleged violations, with a preponderance of the evidence
standard more appropriate for the equivalent of civil claims, and the
beyond a reasonable doubt standard more appropriate for the equivalent
of criminal violations.
Discussion: The Department appreciates the variety of views shared
by commenters and has carefully considered the support for and
objections to the proposed standard of proof. The Department
understands commenters' different perspectives about which standard of
proof is most appropriate for a recipient to use in making a
determination about whether sex discrimination occurred. The Department
heard many similar views shared by stakeholders during the June 2021
Title IX Public Hearing and in listening sessions the Department
conducted prior to the development of the July 2022 NPRM.
The Department has decided to retain the standard of proof proposed
in the July 2022 NPRM, without any changes. Under the final
regulations, therefore, in determining whether sex discrimination
occurred following an investigation and the evaluation of evidence
under Sec. 106.45, and if applicable Sec. 106.46, a recipient must
use the preponderance of the evidence standard of proof unless the
recipient uses the clear and convincing evidence standard in all other
comparable proceedings, including proceedings relating to other
discrimination complaints, in which case the recipient may elect to use
the clear and convincing evidence standard of proof for sex
discrimination cases as well. The 2020 amendments also gave recipients
a choice between the preponderance of the evidence standard and the
clear and convincing evidence standard, but the 2020 amendments
required recipients to apply the same standard of evidence for
complaints against students as for complaints against employees,
including faculty, which these final regulations do not require. Also,
the 2020 amendments required recipients to apply the same standard of
evidence to all formal complaints of sexual harassment, whereas the
final regulations regarding grievance procedures apply to all cases of
sex discrimination, not just sex-based harassment.
The Department is committed to ensuring that a recipient's
grievance procedures provide a fair and reliable process for all
involved, and it is the Department's view that the final regulations
establish a strong framework for such a process. As stated in the
preamble to the July 2022 NPRM, several Federal courts, including
appellate courts, have held that the preponderance of the evidence
standard is constitutionally sound and sufficient to satisfy the
requirements of due process to a respondent when a school evaluates
allegations of sexual harassment. 87 FR 41484 (citing 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.''); 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))); Haas,
427 F. Supp. 3d at 350 (``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.'')).
In addition, Federal courts have upheld the preponderance of the
evidence standard based on the fact that other procedures in the Title
IX regulations work together with the standard to provide sufficient
process for the respondent. See, e.g., Doe v. Cummins, 662 F. App'x
437, 449 (6th Cir. 2016) (``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
[[Page 33702]]
does not give rise to a due-process violation.''). These final
regulations establish, and in some instances maintain from the 2020
amendments, a number of procedural safeguards that together ensure that
a recipient's grievance procedures provide a fair process for all
involved, including requirements that a recipient's grievance
procedures, among other things: treat complainants and respondents
equitably, Sec. 106.45(b)(1); provide the recipient the discretion to
dismiss a complaint in four different circumstances, including when the
allegations, even if proven, would not constitute sex discrimination
under Title IX, Sec. 106.45(d); require notice to the parties of the
allegations, Sec. 106.45(c); must be followed before the imposition of
any disciplinary sanctions against a respondent, Sec. 106.45(h)(4),
which may be imposed only if it is determined that the respondent
engaged in prohibited sex discrimination, Sec. 106.45(h)(3); require
an objective evaluation of all relevant evidence and exclude certain
types of evidence as impermissible, Sec. 106.45(b)(6) and (7); place
the burden on the recipient to conduct an investigation that gathers
sufficient evidence to reach a determination, Sec. 106.45(f)(1);
provide an equal opportunity for the parties to present fact witnesses
and other inculpatory and exculpatory evidence that are relevant and
not otherwise impermissible, Sec. 106.45(f)(2); provide each party
with an equal opportunity to access the evidence that is relevant and
not otherwise impermissible and a reasonable opportunity to respond to
that evidence, Sec. 106.45(f)(4); and require the decisionmaker to
adequately assess a party's or witness's credibility to the extent
credibility is in dispute and relevant to the allegations, Sec.
106.45(g). Moreover, a recipient may adopt additional provisions as
part of its grievance procedures as long as they are applied equally to
the parties. See Sec. 106.45(j).
In addition, there are a number of safeguards that protect against
bias in Title IX proceedings. For example, Sec. 106.45(b)(2) requires
that a decisionmaker not have a conflict of interest or bias for or
against complainants or respondents generally or an individual
complainant or respondent; Sec. 106.45(b)(3) requires the grievance
procedures 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; and Sec. 106.45(b)(5) requires a recipient to
take reasonable steps to protect the privacy of the parties and
witnesses during the grievance procedures. There are also requirements
in Sec. 106.8(d) about training for decisionmakers, including training
on how to serve impartially by avoiding prejudgment of the facts at
issue, conflicts of interest, and bias. Section 106.45(i) of the final
regulations provides that a recipient must offer the parties an appeal
that, at a minimum, is the same as it offers in all other comparable
proceedings, if any, while Sec. 106.45(d)(3) provides the right to
appeal the dismissal of a complaint, and Sec. 106.46(i) requires a
postsecondary institution to offer an appeal based on--among other
things--a procedural irregularity or bias or conflict of interest by
the decisionmaker that would change the outcome. 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. In
addition, the Department reminds all stakeholders that under the
regulations, the burden is on the recipient to gather evidence that
meets the standard of proof, not on the complainant or the respondent.
See 106.45(f)(1).
While the above safeguards are not all the same safeguards that are
available in civil litigation in a court of law, they are legally
sufficient to provide the due process and fundamental fairness required
in the school discipline context. As discussed in the July 2022 NPRM,
the requirements for grievance procedures under Sec. 106.45 comport
with the requirements set out by Goss v. Lopez, 419 U.S. 565 (1975).
See 87 FR 41456 (explaining that at a minimum, Goss requires recipients
to provide students facing temporary suspension notice of the
allegations against them and an opportunity to present their account of
what happened). Courts have also made clear 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., Horowitz, 435 U.S. at 88
(``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) (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'' (citing
Cummins, 662 F. App'x at 446)); 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.''). Because a recipient's
disciplinary goals are different than the goals of the civil and
criminal legal systems, requiring use of the preponderance of the
evidence standard would not cause a recipient to diminish a
respondent's due process rights. In any event, however, the Department
is not requiring use of the preponderance of the evidence standard
across the board; use of that standard is only required of a recipient
if it uses that standard for all comparable proceedings. For further
explanation of how the final regulations comply with legal due process
and fundamental fairness requirements, see the discussion of Due
Process Generally above.
After fully considering all of the comments received, the
Department maintains its view that the preponderance of the evidence
standard of proof best promotes compliance with Title IX because it
ensures that when a decisionmaker determines, based on the evidence,
that it is more likely than not that sex discrimination occurred in its
education program or activity, the recipient can take sufficient steps
to end the sex discrimination, prevent its reoccurrence, and remedy the
effects. The Department continues to believe, and many commenters
emphasized, that the preponderance of the evidence standard best
recognizes that all parties to a Title IX complaint have a strong
interest in the outcome of the proceedings, including the right to
equal access to education absent discrimination on the basis of sex.
For instance, as commenters noted when discussing interests in the
outcome of grievance proceedings, a respondent found responsible for
sex-based harassment might face suspension or expulsion, the latter of
which could restrict their ability to attend school elsewhere, and a
complainant alleging sex-based harassment by a respondent who is found
not responsible may be denied certain remedies and potentially feel
compelled to transfer schools or drop out if the respondent remains at
their school. In addition, all parties may face the possibility of
reputational harm or stigma, peer harassment, or retaliation as a
result of their involvement in a sex-based harassment matter if their
involvement becomes known.
The Department also agrees that by applying the preponderance of
the evidence standard of proof to Title IX allegations, a recipient can
help
[[Page 33703]]
encourage students--such as those who may find a recipient's use of the
clear and convincing evidence standard to be intimidating or may take
it as a signal that the recipient thinks allegations of sex
discrimination are suspect--to come forward and report instances of sex
discrimination. This makes it more likely that sex discrimination will
be addressed and deterred from happening again in the future, and helps
recipients meet their Title IX obligations to provide an educational
environment free from sex discrimination.
The Department does not agree with the assertion of some commenters
that using a preponderance of the evidence standard of proof will
encourage frivolous claims that are not supported by evidence.
Commenters did not provide any evidence to support their prediction.
Allowing use of the preponderance of the evidence standard is not new
with this rulemaking, and the preamble to the 2020 amendments does not
indicate that the Department was concerned about frivolous claims when
it decided to allow recipients to use either the preponderance of the
evidence standard or the clear and convincing evidence standard for
complaints of sex-based harassment. The overall number of sex
discrimination complaints filed may increase if a recipient that has
been using the clear and convincing evidence standard begins to apply
the preponderance of the evidence standard to comply with these
regulations, but encouraging reporting and facilitating complaints is
an important part of the recipient's duty to effectuate Title IX's
nondiscrimination mandate. As a condition of receiving Federal funds, a
recipient agrees to operate its education program or activity free from
sex discrimination; doing so requires knowing about possible sex
discrimination and investigating it to determine the need for remedy,
if any. In addition, procedural protections are built into the
grievance procedures to address such a circumstance. For example, the
regulations governing permissive dismissal allow a recipient to dismiss
a complaint on any of the bases listed in Sec. 106.45(d)(1)(i)-(iv),
including if the recipient determines that the conduct alleged in the
complaint, even if proven, would not constitute sex discrimination
under Title IX. And the grievance procedures are structured to be fair
and accurate, so even if a permissive dismissal is not available, the
procedural safeguards mean that recipients can be confident in the
integrity of the outcome because complaints made in bad faith will not
result in a determination that sex discrimination occurred. In light of
this framework, the Department has carefully considered the concerns
raised by commenters and has decided that the above-stated benefits to
a recipient and to the parties of allowing use of the preponderance of
the evidence standard of proof justify the risk that a complaint will
be made in bad faith.
The Department also disagrees with commenters' concerns that
allowing use of the preponderance of the evidence standard in Sec.
106.45(h)(1) will reduce confidence in the system and cause professors
and students to censor their speech to avoid the risk of harm. Allowing
recipients to use the preponderance of the evidence standard is not a
change from the 2020 amendments. Students' confidence in the system
should not be affected because, as the Department explained in the 2020
amendments and again in the July 2022 NPRM, both the preponderance of
the evidence and clear and convincing evidence standards of proof can
be used to produce reliable, accurate outcomes. See 85 FR 30381; 87 FR
41484. As explained above, the regulations contain procedural
protections to help ensure a fair process. And the Department reaffirms
that nothing in the final regulations should be interpreted to impinge
upon rights protected under the First Amendment, and the protections of
the First Amendment must be considered if issues of speech or
expression are involved. See Sec. 106.6(d). For additional explanation
of the interaction between Title IX and the First Amendment, see the
discussion of the definition of ``sex-based harassment'' in Sec. 106.2
and the discussion of Sec. 106.44(a).
Still, the Department recognizes that some commenters believe the
clear and convincing evidence standard to be clearer and fairer. Under
the Department's approach, if a recipient uses the clear and convincing
evidence standard of proof in all other comparable proceedings,
including proceedings relating to other discrimination complaints, it
may do so for sex discrimination complaints, which may promote
perceptions of fairness. 87 FR 41486 (citing Doe v. Brandeis Univ., 177
F. Supp. 3d 561, 607 (D. Mass. 2016) (holding that a university
deprived a student accused of sexual misconduct of ``basic fairness,''
in part because the university used a lower standard of proof for
sexual misconduct cases than for ``virtually all other forms of alleged
misconduct'')). Under these final regulations, recipients will have the
flexibility to select the standard of evidence that they believe is
most appropriate for sex discrimination complaints, as long as the
standard selected for allegations of sex discrimination is not higher
than the standard selected for allegations of other types of
discrimination or comparable offenses. A recipient may not use the
clear and convincing evidence standard of proof for sex discrimination
allegations if it uses a lower standard of proof for other comparable
proceedings because that would impermissibly discriminate based on sex
in violation of Title IX's mandate and reinforce harmful myths about
the credibility of sex discrimination complainants. 87 FR 41486.
A relatively small number of recipients use the clear and
convincing evidence standard for all student conduct violations. Some
commenters asked whether the Department knows what proportion of
recipients are using the preponderance of the evidence standard, and
according to commenters who described themselves as representing K-12
and postsecondary recipients, the preponderance of the evidence
standard is used by ``the overwhelming majority of postsecondary
institutions . . . for the resolution of non-sex discrimination
incidents,'' and preponderance of the evidence is ``the most common
standard of evidence used by public schools in student sexual
harassment and other incidents.'' Again, either the preponderance of
the evidence standard or the clear and convincing evidence standard may
be used to produce reliable outcomes, and thus the Department felt
comfortable allowing recipients the flexibility to select the standard
of evidence they believed was most appropriate in the 2020 amendments,
85 FR 30373, 30382, and continues to do so now.
While a commenter correctly pointed out that the new regulatory
language does not directly address what standard should be used if a
recipient uses a higher standard of proof than the clear and convincing
evidence standard for comparable proceedings, such as the beyond a
reasonable doubt standard, the Department emphasizes that--as it made
clear both in the preamble to the 2020 amendments, 85 FR 30373, and in
the July 2022 NPRM, 87 FR 41486--the beyond a reasonable doubt standard
is never appropriate to use in sex discrimination proceedings. See also
Santosky v. Kramer, 455 U.S. 745, 768 (1982) (noting that the Supreme
Court hesitates to apply the ``unique standard'' of beyond a reasonable
doubt ``too broadly or casually in noncriminal cases'') (internal
quotation marks and citations omitted). The Department
[[Page 33704]]
thinks few, if any, recipients are using the beyond a reasonable doubt
standard for comparable proceedings.
The Department acknowledges that its position, allowing a recipient
to choose which standard to use yet expressing its view that the
preponderance of the evidence is the better standard for Title IX
purposes, is a change from the 2020 amendments. For the reasons stated
above, the preponderance of the evidence standard is a more appropriate
choice for Title IX proceedings, and the Department wants recipients to
consider using it. However, the Department stands by its decision to
allow recipients a choice because it is important for them to have the
flexibility to choose the standard that best meets their unique needs
and reflects the values of their educational community, and both
standards are fair and can lead to reliable outcomes. See 85 FR 30382.
One of the primary concerns commenters shared about the clear and
convincing evidence standard was that it is vague and a factfinder
trying to apply it might be tempted to borrow from the beyond a
reasonable doubt standard, particularly in light of the presumption of
non-responsibility in proposed Sec. 106.45(b)(3). The Department has
made it clear, however, that the beyond a reasonable doubt standard
must not be used for Title IX proceedings under any circumstances.
Another concern raised was that the use of the clear and convincing
evidence standard suggests that allegations of sex discrimination are
inherently untrustworthy and reinforces stereotypes about the veracity
of sexual harassment allegations. However, if all comparable
proceedings are judged by the clear and convincing evidence standard as
well, then sex-based harassment complaints will not be singled out as
inherently untrustworthy.
The Department does not think the sliding scale approach some
commenters recommended would be appropriate or practicable, whether
based on the type of disciplinary sanction or based on the nature of
the allegations. For example, determining the applicable standard of
proof based on possible disciplinary consequences would be difficult
for recipients to administer because often there are a range of
possible disciplinary sanctions for a student conduct offense,
depending on the severity of the conduct and other facts. A recipient
will not necessarily be able to predict before the investigation and
adjudication what the disciplinary consequence will be. And applying
the same standard of proof to every offense that presents any
possibility of a consequence such as suspension or expulsion might be a
distinction without a difference because that might include all
offenses, depending on the recipient's code of conduct. Creating a
tiered system requiring a higher standard for potentially criminal
Title IX offenses may result in those offenses being subjected to a
higher standard of proof than non-Title IX potentially criminal
offenses covered by the recipient's code of conduct, which would raise
the same concerns about comparable complaints not being treated
comparably. And under either of these tiered approaches, the lack of
predictability would be problematic not only for recipients but also
for students and employees, whether complainants or respondents, who
deserve to know ahead of time what standard will be used to evaluate
claims of sex discrimination.
After thoughtfully reviewing all of the input from commenters and
re-weighing the costs and benefits of its proposed approach, the
Department has decided to keep the standard of proof provision as
proposed in the July 2022 NPRM. In addition, for clarity and
consistency with other provisions in the regulations, the Department
revised the second sentence of Sec. 106.45(h)(1) to clarify that under
either standard of proof, the evidence the decisionmaker must evaluate
must be both ``relevant'' and ``not otherwise impermissible.''
Changes: In the second sentence of Sec. 106.45(h)(1), the
Department has added the words ``and not otherwise impermissible''
after the word ``relevant'' to describe the evidence that the
decisionmaker must evaluate for its persuasiveness under either
standard of proof.
``Comparable Proceedings'' and Other Requests for Clarification
Comments: Some commenters sought clarification of the term
``comparable proceedings'' as used in Sec. 106.45(h)(1).
Some commenters requested that the Department amend the language of
proposed Sec. 106.45(h)(1) to state that a decisionmaker ``must not''
(instead of ``should not'') determine that sex discrimination occurred
if the decisionmaker is not persuaded by the evidence, and conversely,
``must'' determine that sex discrimination did occur if the
decisionmaker is persuaded by the evidence.
Some commenters urged the Department to reiterate that the
recipient still has an obligation to take prompt and effective action
to end sex discrimination, prevent its recurrence, and remedy its
effects, regardless of whether the recipient determines that the
standard was met in a given instance.
Discussion: The Department appreciates the questions from
commenters about what is meant by ``comparable proceedings,'' but
declines to define that term in the final regulations. There are many
different types of disciplinary proceedings, which may vary from
recipient to recipient, and the Department does not want to enshrine
too rigid a definition of ``comparable proceedings'' in the regulatory
text instead of leaving determinations of comparability to each
recipient's reasonable discretion. As the Department explained in the
preamble to the July 2022 NPRM, what proceedings are comparable may
depend on a recipient's student code of conduct, but certainly would
include, but not be limited to, proceedings related to complaints of
other types of discrimination involving the same category of
respondents (e.g., students or employees). 87 FR 41487.
The Department acknowledges commenters' concerns that some
recipients might interpret ``comparable proceedings'' too narrowly,
which might lead to allegations of non-sexual physical violence being
evaluated under the preponderance of the evidence standard of proof and
allegations of sexual violence being evaluated under the higher
standard of clear and convincing evidence. The Department agrees that
such a discrepancy would be inequitable and would reinforce stereotypes
about sexual assault survivors and the perceived veracity of sexual
assault allegations. To avoid that outcome, the Department clarifies
that it generally understands and intends comparable proceedings to
include, for example, allegations of similar types of person-to-person
(as distinct from recipient-to-person) offenses that are physical in
nature and not based on sex. In addition, the Department clarifies that
under the final regulations, a recipient may only use the clear and
convincing evidence standard for sex discrimination proceedings if it
uses that standard for all of its comparable proceedings. If a
recipient uses the clear and convincing evidence standard for some
comparable proceedings and the preponderance of the evidence standard
for others, then it must use the preponderance of the evidence standard
to evaluate sex discrimination complaints.
The Department also acknowledges the concerns raised by commenters
who pointed out that under the regulations as proposed, a recipient
that uses the clear and convincing evidence standard of proof for
student conduct complaints,
[[Page 33705]]
including complaints of race discrimination, could still choose to use
the preponderance of the evidence standard for sex discrimination
complaints, even though sex and race discrimination complaints are
comparable. A recipient must consider the standard it uses for other
civil rights allegations in deciding what standard is appropriate to
use for Title IX allegations, and nothing in these regulations obviates
a recipient's separate obligation to comply with other Federal civil
rights laws. This approach to the Title IX standard of proof does not
require the violation of any statutory or regulatory requirements under
Title VI or Title VII that may apply to recipients. See 85 FR 30382.
Some commenters accused the Department of acting arbitrarily and
capriciously by not considering the possible effect its standard of
proof approach might have on the enforcement of other laws, such as
Title VI, if a recipient chooses to raise all of its standards of proof
in order to come into compliance with Sec. 106.45(h)(1). The
Department did consider the possibility of such an outcome, and as the
Department explained in the preamble to the July 2022 NPRM, recipients
that have been using the clear and convincing evidence standard for
claims of sexual harassment but the preponderance of the evidence
standard for comparable proceedings, including for claims regarding
discrimination on other bases, will have to either lower the standard
for sex discrimination claims to preponderance of the evidence, or
raise the standard for all comparable proceedings to clear and
convincing evidence. See 87 FR 41486. The Department has decided that
recipients should retain flexibility to select the standard of evidence
that they believe is most appropriate, as long as the standard selected
for allegations of sex discrimination is not higher and therefore more
restrictive than the standard selected for allegations of other types
of discrimination or comparable offenses. As stated earlier, the
Department's understanding is that a minority of recipients at both the
K-12 and postsecondary levels are using the clear and convincing
evidence standard for student conduct proceedings, whether for sex
discrimination or otherwise. Nonetheless, the Department maintains, as
it concluded in 2020, 85 FR 30376, that either the preponderance of the
evidence standard or the clear and convincing evidence standard may be
applied to reach reliable outcomes when recipients apply sufficient
guardrails to fulfill their nondiscrimination obligations.
Turning to the second sentence of Sec. 106.45(h)(1), the
Department agrees with commenters that the words ``should not'' in the
second sentence of Sec. 106.45(h)(1) should be changed to ``must
not.'' The Department did not intend to suggest that a recipient has
discretion, even if the decisionmaker is not persuaded by the available
evidence that sex discrimination occurred, to determine that sex
discrimination occurred. The Department does not think it is necessary
to add language to the regulatory text stating that the converse of
that sentence is also true, but agrees that if a recipient is persuaded
by the evidence under the applicable standard that sex discrimination
occurred, the decisionmaker must determine that sex discrimination
occurred.
Finally, the Department appreciates the opportunity to remind
recipients that, even when the evidence does not meet the clear and
convincing evidence standard, the recipient still has to consider
whether it has additional obligations under these regulations,
including any obligation it may have to take prompt and effective steps
under Sec. 106.44(f)(1)(vii) to ensure that sex discrimination does
not continue or recur within its education program or activity, which
could, for example, include taking non-disciplinary steps such as
providing additional training or educational programming. See Sec.
106.44(f)(1)(vii).
Changes: In the second sentence of final Sec. 106.45(h)(1), the
word ``should'' has been replaced with the word ``must.''
Different Standards for Students and Employees
Comments: Some commenters appreciated that proposed Sec.
106.45(h)(1) would, in contrast to Sec. 106.45(b)(1)(vii) under the
2020 amendments, afford recipients flexibility to use a different
standard when investigating student conduct than they do when
addressing employee conduct, as appropriate. Some commenters
appreciated the Department providing recipients flexibility to select
the standard that best meets the recipient's unique needs and reflects
the recipient's values. Others stated that giving recipients a choice
is appropriate because there may be collective bargaining agreements,
State labor laws, faculty bylaws, systemwide employee policies, or
other constraints that a recipient cannot unilaterally change that may
dictate the standard of proof that can be used in matters involving
employees.
Conversely, some commenters objected to allowing different
standards of proof for students and faculty or staff. For example, some
commenters asserted this is discriminatory or unfair and contradicts
the Department's stated justification of consistency with comparable
proceedings. Some commenters asserted that use of a different standard
for employee-involved cases sends a message to students that their
experience is not being taken as seriously, and that employees are
better supported than students. Some commenters noted that students
should not be deprived of procedural protections simply because they
are not covered by a collective bargaining agreement, and noted that
faculty and staff typically have more resources for legal
representation and are better able to navigate the grievance process.
Discussion: The Department appreciates all of the comments
regarding the Department's proposal to remove the 2020 requirement that
a recipient apply the same standard of proof to complaints against
students as it does to complaints against employees. After discussing
this issue in the July 2022 NPRM and specifically asking for comments
on it, 87 FR 41486-87, and carefully considering the comments received,
the Department continues to believe that this change from the 2020
amendments is necessary because of the difference in the relationships
and obligations recipients have to their students as compared to their
employees. Stakeholders told the Department that requiring recipients
to use the same standard of proof for complaints against students and
employees hampered their flexibility to choose a standard that is
responsive to the many differences in their obligations to their
students and their employees. For example, recipients may have
collective bargaining agreements or be subject to State laws mandating
a higher standard of proof for evaluating allegations of employee
misconduct that they would prefer not to use, or under State law cannot
use, for student conduct allegations. The Department also recognizes
that it might be unfair to hold students to the same standard of
evidence as employees under a collective bargaining agreement because
students are not parties to that agreement and were not able to
participate in its negotiation. In addition, as explained in the July
2022 NPRM, 87 FR 41487, the Department does not think it is necessary,
for student predictability purposes, to require the same standard of
proof to be
[[Page 33706]]
used for student and employee complaints because final Sec.
106.45(a)(1) and (h)(1) require recipients to put the grievance
procedures in writing and state which standard of proof they will use
to determine whether the respondent violated the recipient's
prohibition on sex discrimination.
To be clear, the Department does not maintain that sex-based
harassment by a recipient employee is less serious or less
consequential than sex-based harassment by a student. The Department
recognizes that power imbalances between students and employees can
create the conditions for sex-based harassment; in fact, the
Department's definition of sex-based harassment acknowledges this by
including both quid pro quo and hostile environment harassment, and by
requiring, in determining whether a hostile environment has been
created, a recipient to consider--among other things--the parties' ages
and their respective roles within the recipient's education program or
activity. See discussion of Sec. 106.2 (Definition of ``Sex-Based
Harassment''). Some commenters relied on an OCR case resolution letter
from the 1990s, Letter from Gary D. Jackson, Reg'l Civil Rights Dir.,
Office for Civil Rights, U.S. Dep't of Educ., to Jane Jervis,
President, The Evergreen State Coll. (Apr. 4, 1995) (Evergreen Letter),
https://www2.ed.gov/policy/gen/leg/foia/misc-docs/ed_ehd_1995.pdf,\59\
to argue that the power differential between a student and an employee
dictates that the preponderance of the evidence standard must be used
for allegations brought by students against employees, and that the
Department's proposal to allow a different standard to be used for
allegations against students and those against employees would
reinforce that power imbalance. However, in the Evergreen matter OCR
required the recipient to use the preponderance of the evidence
standard because OCR policy at the time was that all sexual harassment
allegations had to be evaluated using a preponderance of the evidence
standard, not because the allegations were brought by a student against
a professor. Evergreen Letter at 1. Even under the preponderance of the
evidence standard, OCR found the evidence insufficient to support a
finding that the Evergreen professor engaged in unwelcome sexual
conduct relative to the student or that the professor created a hostile
environment for the student. Id. at 5-6. OCR did find that the
recipient's grievance procedures violated Title IX, not only because
the recipient applied a higher standard of proof to allegations against
employees, but also because under the recipient's grievance procedures
the respondent employee had a right to challenge the composition of the
panel of decisionmakers considering the allegations and the complainant
did not, and the employee respondent was given a right to present their
case to the panel of decisionmakers while the student complainant was
not. Id. at 9-10. Under these final regulations such inequitable
grievance procedures are not permitted.
---------------------------------------------------------------------------
\59\ The Evergreen Letter is cited for historical purposes only,
and recipients should not rely on it for guidance regarding Title
IX.
---------------------------------------------------------------------------
The Department has said before, and maintains, that consistency
with respect to the enforcement of Title IX is desirable. However, in
the employment context there are numerous other legal obligations that
recipients have to comply with, such as other civil rights laws, State
laws regarding employee rights, and contractual obligations such as
collective bargaining agreements. The Department has decided that in
this case the value of flexibility to recipients to manage their
relationships with their employees and students, respectively, counsels
against requiring recipients to use the same standard of proof to
evaluate allegations against employees that they use to evaluate
allegations against students.
Changes: None.
20. Section 106.45(h)(2) Notification of Determination Whether Sex
Discrimination Occurred
Comments: Some commenters supported the removal of the written
notice requirement in Sec. 106.45(b)(7) of the 2020 amendments because
it would eliminate excess paperwork and redundancy and provide
recipients with more flexibility. Some commenters supported the
inclusion of the requirement in Sec. 106.45(h)(2) that recipients
notify both the complainant and respondent about the outcome of a
complaint.
In contrast, other commenters opposed the lack of a written
requirement in proposed Sec. 106.45(h)(2) for several reasons,
including because they believe it would make appeals difficult, reduce
confidence in the process and reduce the parties' understanding of why
an outcome was reached. Some commenters also noted that written
notifications are especially important for elementary and secondary
students and for students with disabilities and their parents. Some
commenters noted that proposed Sec. 106.45(h)(2) may be inconsistent
with the written notice requirements under the Clery Act for
postsecondary institutions.
Some commenters asked the Department to clarify some aspects of
proposed Sec. 106.45(h)(2), including that a notice of outcome would
need to be provided in adaptive formats as necessary to accommodate a
student's disability and whether the notice required in proposed Sec.
106.45(h)(2) must include notice of the right to appeal.
Discussion: As discussed in the July 2022 NPRM, the Department
heard from elementary school and secondary school recipients during the
June 2021 Title IX Public Hearing that they did not have the
infrastructure to perform all of the requirements in the 2020
amendments, 87 FR 41488, and the Department received comments raising
similar concerns in response to the July 2022 NPRM. After carefully
considering comments received in response to proposed Sec.
106.45(h)(2) and in light of the Department's decision to modify Sec.
106.45(i) to require a recipient to offer an appeal process from a
determination arising out of a sex discrimination complaint that is the
same as it offers in other comparable proceedings, the Department has
determined that it is necessary to modify Sec. 106.45(h)(2) to require
recipients to provide a written notification of the determination
whether sex discrimination occurred. The Department is persuaded that
written notification is necessary to ensure transparency and
consistency in a recipient's grievance procedures and to provide the
parties with the information necessary to utilize their right to
appeal, if applicable, under the recipient's procedures. Additionally,
for consistency with other provisions in these final regulations and to
avoid recipient confusion as to whether a notice of outcome is
different from a determination whether sex discrimination occurred, the
Department has revised Sec. 106.45(h)(2) to replace the requirement to
notify the parties of the outcome of the complaint with the requirement
to notify the parties in writing of the determination whether sex
discrimination occurred under Title IX or this part. The Department is
also persuaded that Sec. 106.45(h)(2) should be modified to require
recipients to provide not only a determination whether sex
discrimination occurred but also a rationale for such determination, as
such information is also necessary to facilitate the appeals process.
The Department has determined that when considered in the context
of the overall flexibility provided to recipients in these final
regulations, the benefit
[[Page 33707]]
provided to parties in requiring written notification, including
notification of the rationale for the determination, outweighs the
burden imposed on recipients. The Department also agrees with
commenters that written notification will be particularly helpful in
ensuring that parents, guardians, or other legally authorized
representatives of students in elementary school or secondary school
and students with disabilities receive the information they need to
understand the outcome of relevant grievance procedures. The Department
notes that under the recordkeeping requirements in Sec. 106.8(f)(1),
recipients are already required to maintain documentation of the
grievance procedures undertaken in response to a complaint of sex
discrimination. For this reason, it will not require significantly more
work or documentation on the part of an elementary school or secondary
school recipient to provide written notification of a determination
whether sex discrimination occurred and the rationale for such
determination. The Department also notes that Sec. 106.45(h)(2) does
not require elementary school and secondary school recipients to
provide the same degree of detail as that required of postsecondary
institutions in Sec. 106.46(h). Section 106.45(h)(2) provides a
recipient with flexibility to choose what information to share in a
written notification while setting a baseline requirement that
recipients inform any parties of the determination whether sex
discrimination occurred under Title IX or this part, the rationale for
such determination, and the procedures and permissible bases for the
complainant and respondent to appeal, if applicable. Consistent with
Sec. 106.8(e), recipients must ensure that such notice complies with
the requirements of the IDEA and/or Section 504, if applicable, when a
grievance procedure includes students with disabilities.
These changes acknowledge the importance of parties' access to the
information necessary to understand how a final determination was
reached and are consistent with the numerous requirements in the final
regulations that ensure such transparency, including: notice of the
allegations to the parties (Sec. 106.45(c)); equitable treatment of
complainants and respondents (Sec. 106.45(b)(1)); objective evaluation
of all relevant, and not otherwise impermissible, evidence (Sec.
106.45(b)(6) and (7)); allowing the parties an equal opportunity to
present fact witnesses and other inculpatory and exculpatory evidence
that are relevant and not otherwise impermissible (Sec. 106.45(f)(2));
providing each party with an equal opportunity to access the evidence
that is relevant and not otherwise impermissible (Sec. 106.45(f)(4));
requiring adherence to these grievance procedures before imposition of
any disciplinary sanctions (Sec. 106.45(h)(4)); and the right to
appeal complaint dismissals (Sec. 106.45(d)(3)).
The Department appreciates commenters' concerns that the Clery Act
requires postsecondary institutions to provide written determinations
of responsibility and notes that Sec. 106.46(h) requires a written
determination for complaints of sex-based harassment involving student
complainants or student respondents at postsecondary institutions,
which are subject to the Clery Act. Elementary school and secondary
school recipients, however, are not subject to the Clery Act. As
discussed above, however, the Department has modified Sec.
106.45(h)(2) to require a written determination.
The Department also appreciates the opportunity to clarify that
Sec. 106.45(h)(2) also requires a recipient, including at the
elementary school and secondary school level, to provide parties with
notice of the procedures and permissible bases for the complainant and
respondent to appeal, as applicable, under Sec. 106.45(i).
Changes: The Department has modified Sec. 106.45(h)(2) to require
notification in writing of the determination whether sex discrimination
occurred and has added the requirement that notification include the
rationale for such a determination. For the reasons stated previously
and consistent with changes made to other provisions, the reference to
``Title IX'' has also been modified to ``Title IX or this part.''
21. Section 106.45(h)(3) Remedies to a Complainant and Other
Appropriate Prompt and Effective Steps
Comments: Some commenters expressed general support for proposed
Sec. 106.45(h)(3) to ensure recipients consistently take steps to
prevent sex discrimination.
Some commenters urged the Department to clarify that the
responsibilities assigned to the Title IX Coordinator are
responsibilities of the recipient itself and might sometimes be carried
out by other personnel.
Some commenters noted the scope of the obligation contemplated by
proposed Sec. 106.45(h)(3) is too broad to the extent that it would
impose strict liability on recipients or require remedies for persons
other than the complainant. One commenter urged the Department to
remove ``limited or'' from proposed Sec. 106.45(h)(3) to better align
with the standard set by the Supreme Court in Davis, 526 U.S. at 652,
which uses ``denying . . . equal access to an educational program or
activity.''
Some commenters urged the Department to clarify the remedies a
recipient may provide, including that remedies may be appropriate when
a recipient determines that sex discrimination did not occur (such as
requiring a respondent to take classes on consent, issuing no-contact
orders, or making changes to schedules); what remedies would apply to
students who graduate before resolution of a complaint; and whether
recipients must provide notice to the parties of remedies that will be
provided to other students.
Discussion: With respect to the Title IX Coordinator's role in
providing and implementing remedies, the Department notes that the
recipient itself is responsible for compliance with obligations under
Title IX, including any responsibilities specifically assigned to the
recipient's Title IX Coordinator under these final regulations.
Although the proposed and final regulations require one Title IX
Coordinator to retain ultimate oversight, the regulations expressly
permit delegation of duties at Sec. 106.8(a)(2), which enables a
recipient to assign duties to personnel who are best positioned to
perform them, to avoid actual or perceived conflicts of interest, and
to align with the recipient's administrative structure. In order to
eliminate any ambiguity as to the Title IX Coordinator's role with
respect to remedies and whether the Title IX Coordinator can delegate
the provision and implementation of remedies to designees, the
Department revised the description of the Title IX Coordinator's role
in Sec. 106.45(h)(3) from ``provide and implement remedies'' to
``coordinate the provision and implementation of remedies.'' For
example, remedies that involve transcript changes would need to be
coordinated through the registrar's office and remedies that involve
counseling would need to be coordinated through counseling resources.
With respect to the concern that proposed Sec. 106.45(h)(3) would
broaden the Title IX Coordinator's authority to implement remedies
based solely on that person's discretion, the Department disagrees that
this provision changes the Title IX Coordinator's authority or
discretion regarding remedies. The Department notes that remedies may
only be provided after a recipient determines that sex discrimination
has occurred, and the recipient is ultimately
[[Page 33708]]
responsible for ensuring that any remedies are designed to restore or
preserve access to its education program or activity. See Sec. 106.2
(definition of ``remedies''). Similarly, a recipient may not impose
discipline on a respondent for sex discrimination prohibited by Title
IX unless there is a determination at the conclusion of the recipient's
grievance procedures that the respondent engaged in prohibited sex
discrimination.
In response to the commenter who urged removal of ``limited or''
from proposed Sec. 106.45(h)(3), the Department notes that 20 U.S.C.
1681(a) prohibits any person ``on the basis of sex'' from ``be[ing]
excluded from participation in, be[ing] denied the benefits of, or
be[ing] subjected to discrimination under any education program or
activity receiving Federal financial assistance.'' Limiting access
based on sex is therefore clearly prohibited by the statute. Davis did
not purport to hold otherwise. Title IX's broad nondiscrimination
mandate requires a recipient to provide an education program or
activity that does not unlawfully limit access based on sex, and the
Title IX regulations have long prohibited a recipient from ``limit[ing]
any person in the enjoyment of any right, privilege, advantage, or
opportunity'' based on sex. 34 CFR 106.31(b)(7). For additional
explanation regarding the addition of the ``limit or deny'' language to
the definition of hostile environment sex-based harassment, please see
Hostile Environment Sex-Based Harassment--Limits or Denies (Sec.
106.2) (Section I.C).
The Department also disagrees that requiring a recipient to ``take
other appropriate prompt and effective steps to ensure that sex
discrimination does not continue or recur'' constitutes a strict
liability standard. The Department's application of the requirement to
respond promptly and effectively is further detailed in the discussion
of Sec. 106.44(a) and (f). As explained in the July 2022 NPRM, the
Department would not terminate Federal funds from a recipient, without
taking further steps, simply because an official failed to take prompt
and effective steps to ensure that sex discrimination did not continue
or recur. 87 FR 41433. When OCR begins an investigation or compliance
review, it provides notice to the recipient of the 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. In the administrative enforcement process,
there will never be a circumstance in which OCR pursues fund
termination without the recipient first having notice and the
opportunity to take corrective action to address a Title IX violation.
With respect to the concern about remedies for persons other than
the complainant, as explained in the July 2022 NPRM, the Department
included this language to recognize that in some situations, remedies
may be appropriate for someone other than the complainant. 87 FR 41489.
In final Sec. 106.45(h)(3), the Department changed the reference to
providing remedies to a complainant ``or other person'' identified by
the recipient as having had equal access to its education program or
activity limited or denied by sex discrimination, to instead refer to a
complainant ``and other persons,'' recognizing that depending on the
circumstances of the sex discrimination, a recipient may have to
provide remedies to both a complainant and another person or persons.
For example, a student reports to her Title IX Coordinator about
pervasive sex-based harassment in the school's robotics club, including
allegations that boys make the girls carry the equipment, clean up the
lab, and take notes for them. The school determines that there is a
hostile environment that limited the complainant's access to the
benefits of the club and therefore must take steps to end the
harassment and eliminate the hostile environment. As part of that
response, the recipient determines that the two other girls in the club
were subjected to the same hostile environment and were similarly
limited in their opportunities to participate in the club. To fully
eliminate the effects of the discrimination, the recipient may have to
offer remedies to the students who were subjected to the hostile
environment but did not report discrimination. Similarly, 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 challenges for other participants in that
environment who, while not harassed, may have witnessed the sex-based
harassment. The final regulations do not require the recipient to
notify the respondent of the remedies provided to the complainant or
other persons. It would not further Title IX's purposes or be necessary
for a prompt and equitable process, which will at that time be
concluded, to notify the respondent of remedies that require no action
by the respondent. The Department notes, however, that some remedies
might require action by the respondent. For example, if a determination
is made after a grievance procedure that an employee respondent gave a
student a failing grade based on sex discrimination, and the remedy
required that respondent to change the grade, then the respondent would
be notified of such remedy. The final regulations do, however, require
that the Title IX Coordinator notify the complainant of any
disciplinary sanctions imposed on a respondent under Sec. 106.45(h)(3)
because such disciplinary sanctions are imposed following a
determination that the respondent violated the recipient's prohibition
on sex discrimination as to the complainant, and notification to the
complainant is necessary to remedy its effects. In some cases,
notification to the complainant may also be necessary to prevent
recurrence of or end sex discrimination. For example, if a student
respondent is found responsible for engaging in sex-based harassment
and is removed from an extracurricular activity in which the
complainant also participates, it would serve the purpose of ending the
harassment to both remove the student from the activity and notify the
complainant of this disciplinary action so that the complainant can
continue to participate with the knowledge that the respondent will
not.
The Department declines a commenter's request to identify remedies
a recipient may provide when it is determined that sex discrimination
did not occur because under the definition in Sec. 106.2, ``remedies''
cannot be imposed if a recipient determines that sex discrimination did
not occur. However, a recipient may offer supportive measures, as that
term is defined in the final regulations at Sec. 106.2, even if the
recipient does not determine that sex discrimination occurred, as long
as the supportive measures do not unreasonably burden a party. For more
information regarding supportive measures, see the discussion of Sec.
106.44(g).
In response to a comment about remedies for students who graduate
before a complaint is resolved, the Department recognizes that a
student's graduation may limit the remedies that may be available or
appropriate. For example, a respondent's graduation may limit a
recipient's discretion to implement certain remedies that affect the
respondent, but the recipient would still have authority, for example,
to restrict a respondent's access to campus. A complainant's graduation
may also limit the remedies that may be available or appropriate, but
there may be
[[Page 33709]]
remedies that would serve to restore or preserve a complainant's access
to the recipient's education program or activity after graduation. For
example, the recipient may decide to prohibit an employee respondent
from attending an alumni event that the complainant seeks to attend.
And, as noted above, there may be appropriate remedies for students
other than the complainant who are still participating in the
recipient's education program or activity.
The Department appreciates the opportunity to clarify that when
there is a determination that sex discrimination occurred, a recipient,
through its Title IX Coordinator or designees, is also required to
coordinate the implementation of any disciplinary sanctions on the
respondent. This coordination includes notifying the complainant of any
disciplinary sanctions the recipient will impose on the respondent. As
the Department explained in the 2020 amendments, a complainant should
know what sanctions the respondent receives because knowledge of the
sanctions may impact the complainant's equal access to the recipient's
education program or activity. 85 FR 30428. The Department did not
intend to suggest a change from this rationale in the 2020 amendments
by excluding this language from proposed Sec. 106.45(h)(3). To ensure
that there is no confusion, the Department added language to Sec.
106.45(h)(3) to clarify that these final regulations continue to
require a Title IX Coordinator to coordinate the implementation of any
disciplinary sanctions on a respondent, including notification to the
complainant of such disciplinary sanctions. As stated above, a
recipient may not impose discipline on a respondent for sex
discrimination prohibited by Title IX unless there is a determination
at the conclusion of the recipient's grievance procedures that the
respondent engaged in prohibited sex discrimination. The Department has
added a statement to Sec. 106.45(h)(3) to clarify its intent in that
regard.
Changes: The Department has revised the description of the Title IX
Coordinator's role in Sec. 106.45(h)(3) from ``provide and implement
remedies'' to ``coordinate the provision and implementation of
remedies.'' The Department has changed the words ``or other person'' to
``and other persons.'' Additionally, the Department has revised Sec.
106.45(h)(3) to state that a Title IX Coordinator is also responsible
for coordinating the implementation of any disciplinary sanctions on a
respondent, and that such coordination should include notification to
the complainant of any such disciplinary sanctions. The Department also
has made a technical update to the provision by changing the reference
to Sec. 106.44(f)(6) to instead reference Sec. 106.44(f)(1)(vii).
Finally, the Department has added a statement that a recipient may not
impose discipline on a respondent for sex discrimination prohibited by
Title IX unless there is a determination at the conclusion of the
recipient's grievance procedures that the respondent engaged in
prohibited sex discrimination.
22. Section 106.45(h)(4) Comply With This Section Before Imposition of
Disciplinary Sanctions
Comments: Some commenters supported proposed Sec. 106.45(h)(4) on
the ground that it would require due process before imposing
disciplinary sanctions.
Several commenters expressed concern that proposed Sec.
106.45(h)(4) would require a recipient to treat sex-based harassment
differently from all other forms of student misconduct. For example,
some commenters noted that other forms of student misconduct may be
addressed immediately if a respondent admits to the conduct, there are
undisputed facts or other irrefutable proof, or staff directly and
personally witnesses the misconduct. Some commenters observed that the
inability to take prompt actions under proposed Sec. 106.45(h)(4)
could result in a hostile environment for a complainant and shared
personal experiences of instances in which this occurred.
Other commenters opposed proposed Sec. 106.45(h)(4) because they
believed that a recipient should have flexibility to impose sanctions
upon a finding of responsibility, instead of after an appeal. Some
commenters suggested proposed Sec. 106.45(h)(4) might also incentivize
a respondent to engage in meritless appeals to delay sanctions. The
commenters also highlighted difficulties a recipient might face under
proposed Sec. 106.45(h)(4) if a respondent commits another violation
during the period between finding responsibility and when the
determination becomes final, or if a respondent graduates or receives a
diploma while an appeal is pending. Some commenters suggested the Title
IX Coordinator should make a preliminary determination that a Title IX
violation might have occurred and if it may result in a warning,
suspension, or expulsion, prior to the start of an investigation.
Some commenters requested clarification as to how proposed Sec.
106.45(h)(4) intersects or aligns with other laws. For example, some
commenters noted that some State laws require or permit suspension or
expulsion within a certain number of days after a recipient determines
sexual assault or harassment occurred, citing as an example California
Education Code Sec. 48918, 48900(n). Some commenters sought
clarification as to how proposed Sec. 106.45(h)(4) would intersect
with the emergency removal provisions in the Clery Act.
Some commenters urged the Department to require a recipient to
notify State certification authorities of any determination that an
employee engaged in sex-based harassment.
Discussion: Following the Department's review of public comments we
note that the requirement to comply with the grievance procedures
before the imposition of any disciplinary sanctions against a
respondent is consistent with the 2020 amendments, which provided in
Sec. Sec. 106.44(a) and 106.45(b)(1)(i) that a recipient's response to
sexual harassment must treat complainants and respondents equitably by
``following a grievance process that complies with Sec. 106.45 before
the imposition of any disciplinary sanctions or other actions that are
not supportive measures . . . against a respondent.'' 34 CFR 106.44(a).
The July 2022 NPRM proposed, and these final regulations maintain, this
same general requirement at Sec. 106.45(h), which is a different part
of the regulations as explained in the July 2022 NPRM. 87 FR 41489.
Section 106.45(h)(4) also applies to all complaints of sex
discrimination, not just formal complaints of sexual harassment as it
did under the 2020 amendments. The requirement to comply with the
grievance procedures before the imposition of any disciplinary
sanctions against a respondent in Sec. 106.45(h)(4) is also consistent
with Sec. 106.45(b)(3) and supports the implementation of a neutral,
bias-free grievance process.
With respect to the comment that Sec. 106.45(h)(4) will require a
recipient to treat sex discrimination differently from all other forms
of student misconduct, which may be handled more summarily in certain
circumstances, Sec. 106.45(h)(4) strikes the right balance between
expediency and requiring that recipients conduct a bias-free grievance
procedure and comply with grievance procedures before the imposition of
disciplinary sanctions. While the Department understands that different
types of misconduct may be handled differently, these protections are
critical to Title IX's nondiscrimination mandate. The final regulations
treat complainants and respondents equitably, create a fair
[[Page 33710]]
process for handling complaints, and address concerns that respondents
may suffer disciplinary sanctions or punitive action from pending
allegations. For this reason, the Department declines commenters'
suggestions to require Title IX Coordinators to instead make a
preliminary determination that a Title IX violation might have
occurred.
The Department appreciates the opportunity to clarify that Sec.
106.44(g)-(i) allows a recipient to protect a complainant's access to
the education program and the health and safety of students, such as
removing a respondent from an extracurricular activity or employment
responsibilities as a non-disciplinary measure, if certain conditions
are met. Under Sec. 106.44(g), recipients must offer and coordinate
supportive measures, as long as such supportive measures do not
unreasonably burden either party, are not provided for punitive or
disciplinary reasons, and are designed to protect the safety of the
parties or the recipient's educational environment or to 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). Such supportive measures may not be
provided for punitive or disciplinary reasons because a determination
whether sex discrimination occurred has not yet been made under the
grievance procedures. Under Sec. 106.44(h), a recipient may remove 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 imminent
and serious threat to the health or safety of the complainant,
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. Under Sec. 106.44(i), a recipient may place an
employee respondent on administrative leave from employment
responsibilities during the pendency of the recipient's grievance
procedures. Only after a finding that sex discrimination has occurred
may disciplinary sanctions be imposed.
The Department disagrees that Sec. 106.45(h)(4) decreases a
recipient's flexibility with respect to disciplinary sanctions because
recipients retain discretion to determine the disciplinary sanctions
that may be imposed. The Department also disagrees that Sec.
106.45(h)(4) will incentivize a respondent to engage in meritless
appeals to delay disciplinary sanctions. While any appeal is pending,
respondents may continue to be subject to supportive measures, and
emergency removal under Sec. 106.44(h) or administrative leave under
Sec. 106.44(i), if applicable. The bases for appeal will also be
carefully delineated and therefore less suspect to abuse. Under Sec.
106.45(i), a recipient must offer the parties an appeal process that,
at a minimum, is the same as it offers in all other comparable
proceedings, if any, including proceedings relating to other
discrimination complaints. Recipients have discretion regarding the
bases for appeal under Sec. 106.45(i), but a respondent may only
appeal on the bases offered by the recipient. The final regulations do
not permit a respondent to seek an appeal for reasons beyond those set
forth by the recipient. If, as commenters suggested, a respondent
committed an additional violation during the pendency of an appeal, a
recipient would be obligated to take action to address that violation
as well and to provide supportive measures to a complainant as
appropriate. Waiting to impose disciplinary sanctions until the
conclusion of the grievance procedure through any appeal is consistent
with the treatment of sanctions pending appeals under the 2020
amendments, see 85 FR 30393, and with Sec. 106.46(h)(2), discussed
elsewhere in this preamble. To the extent State law requires
disciplinary action to be imposed within a certain period of time after
a determination that sex discrimination, including sex-based
harassment, occurred, recipients should comply with such State laws
unless there is a conflict with these regulations, in which case State
law does not obviate or alleviate a recipient's obligations under Title
IX and these regulations. See Sec. 106.6(b) and the related discussion
in this preamble. And consistent with the Department's position in the
preamble to the 2020 amendments, these final regulations do not alter
requirements under the Clery Act or its implementing regulations. See
85 FR 30384.
The Department declines to require recipients to impose particular
disciplinary sanctions after a finding that sex discrimination
occurred, nor does the Department believe that offering examples of
types of disciplinary sanctions is necessary. Recipients retain
discretion in determining what disciplinary sanctions may be
appropriate, as long as their use of disciplinary sanctions fulfills
the Title IX nondiscrimination mandate.
The Department declines to require a recipient to report an
employee it determines engaged in sex-based harassment to State
authorities. Violations of Title IX are distinct from State criminal
laws, and Title IX is not enforced by State authorities. Nonetheless,
nothing in the final regulations prevents a recipient from disclosing
such determinations of sex discrimination to a State agency.
Changes: For clarity, the Department has changed ``this section''
to ``Sec. 106.45.''
23. Section 106.45(h)(5) Prohibition on Discipline Based Solely on
Determination
False Statements
Comments: Some commenters supported proposed Sec. 106.45(h)(5)
based on a belief that it eliminated disciplinary actions for false
complaints or false statements. Some of these commenters noted that
misperceptions and inconsistencies are not intentionally false but
rather can be associated with trauma or the influence of alcohol.
Other commenters supported proposed Sec. 106.45(h)(5) because it
would strengthen protections against retaliation for making a complaint
or serving as a witness.
Several commenters opposed Sec. 106.45(h)(5) based on the belief
that it prohibits a recipient from punishing students for filing false
complaints or making false statements. For example, some commenters
noted that because of the ``severe consequences'' at stake in Title IX
investigations, recipients should hold individuals accountable for
false statements. Some commenters expressed concern that proposed Sec.
106.45(h)(5) would encourage or condone false reports, while others
felt proposed Sec. 105.45(h)(5) would prevent Title IX decisionmakers
from ascertaining the true facts and circumstances around complaints.
One commenter argued that proposed Sec. 106.45(h)(5) would deny
respondents the basic rights needed to protect themselves from false
accusations.
Several commenters suggested modifications to proposed Sec.
106.45(h)(5), including that recipients should be required to have
policies in place to address false statements; that discipline for
knowingly false statements should be permitted; and that false
statements should be punishable in accordance with existing codes of
conduct. Some commenters urged the Department to add a requirement that
when allegations are proven false, the students must sign a
nondisclosure agreement related to such allegations.
[[Page 33711]]
Several commenters expressed confusion about proposed Sec.
106.45(h)(5). Some commenters sought clarification of whether
discipline for a false statement based solely on a recipient's decision
of whether sex-based discrimination occurred is prohibited retaliation.
Some commenters suggested the Department use the language in Sec.
106.71(b)(2) of the 2020 amendments because it is clearer. Some
commenters requested clarification on whether proposed Sec.
106.45(h)(5) would prohibit a recipient from punishing someone who
makes a materially false statement in bad faith.
Discussion: The Department appreciates the opportunity to clarify
the meaning of Sec. 106.45(h)(5). Section 106.45(h)(5) does not
categorically prohibit recipients from ever disciplining parties,
witnesses, or others participating in a Title IX grievance procedure
for making false statements. It prohibits recipients from disciplining
such individuals ``based solely'' on the recipient's determination
whether sex discrimination occurred. As discussed in the July 2022
NPRM, Sec. 106.45(h)(5) furthers the Department's goal of ensuring
that a recipient's efforts to address sex discrimination are equitable
by allowing parties, witnesses, and others to participate in grievance
procedures without fear that the outcome alone could lead to a
determination that false statements were made. 87 FR 41490. Under Sec.
106.71(b)(2) of the 2020 amendments, charging an individual with a code
of conduct violation for making a materially false statement in bad
faith during a Title IX grievance proceeding was permitted as long as
the recipient did not base its charge solely on the outcome of the
grievance proceeding. The Department incorporated that same principle
from the 2020 amendments into Sec. 106.45(h)(5). 87 FR 41490. Section
106.45(h)(5) continues to protect anyone who participates in the
grievance procedures, not just those who participate as complainants,
and as discussed in the July 2022 NPRM, it addresses concerns that the
general retaliation provision in the 2020 amendments had a chilling
effect on a person's participation in a recipient's grievance
procedures due to confusion from the wording. 87 FR 41490. Section
106.45(h)(5) maintains the recipient's discretion to discipline those
who make false statements, including materially false statements made
in bad faith, based on evidence other than or in addition to the
outcome of its Title IX grievance procedures.
The Department disagrees that Sec. 106.45(h)(5) will condone or
encourage false reports. As discussed above, the 2020 amendments
contained a similar provision, and commenters provided no evidence that
false reports have increased, nor is the Department aware of any. To be
clear, Sec. 106.45(h)(5) permits a disciplinary process to be
initiated under a recipient's code of conduct to address false
statements as long as there is evidence independent of the
determination whether sex discrimination occurred, and evidence
developed during the Title IX grievance process may be used in such a
disciplinary process.
In response to commenter concerns, the Department also notes that
Sec. 106.45(h)(5) will not inhibit the ability of Title IX
decisionmakers to ascertain the facts and circumstances of a complaint
because this provision does not pertain to the factfinding phase of a
recipient's grievance procedure. Section 106.45(h)(5) is only
applicable after a determination of sex discrimination is made and only
if a recipient is considering whether to initiate a disciplinary
process alleging a party, witness, or other participant in the Title IX
grievance procedure made a false statement.
The Department disagrees that Sec. 106.45(h)(5), which applies
equally to all parties, will deny procedural rights to a respondent.
Nothing in Sec. 106.45(h)(5) prohibits a recipient from considering
the credibility of any party or witness during the grievance procedure.
The Department appreciates the opportunity to clarify that
threatening to institute or instituting disciplinary proceedings
against a party, witness, or other person who participated in a
grievance procedure could, under the circumstances outlined in Sec.
106.71, constitute retaliation under that section. Section 106.45(h)(5)
informs parties, witnesses, and others that they cannot be disciplined
under any circumstance for making a false statement--whether the
discipline would constitute retaliation or not--if the discipline is
based solely on the recipient's determination whether sex
discrimination occurred.
The Department appreciates commenters' suggestions for
modifications to Sec. 106.45(h)(5). The Department declines
commenters' suggestions that the Department impose requirements on
recipients' non-Title IX disciplinary processes for false statements,
such as requiring recipients to have policies and procedures in place
to address false statements generally, requiring recipients to impose
discipline for false statements made during a grievance process in
situations that would not violate Sec. 106.45(h)(5), or requiring
recipients to impose nondisclosure agreements on the relevant parties
when allegations are proven false. How recipients structure their
disciplinary processes for false statement offenses is not the subject
of this rulemaking.
Changes: None.
Consensual Sexual Activity
Comments: Some commenters expressed support for proposed Sec.
106.45(h)(5) because they believe the practice of punishing students
who report sexual harassment for engaging in prohibited consensual
sexual conduct interferes with a survivor's access to education and
chills reporting.
Some commenters opposed proposed Sec. 106.45(h)(5), stating that
the language addressing consensual sexual misconduct is unnecessary
because they believe a postsecondary recipient would not discipline
students for engaging in consensual sexual conduct.
Some commenters stated that because ``consensual sexual conduct''
is a different topic from ``false statements,'' they should be
addressed in separate provisions with more clarity.
Discussion: The Department is aware that some recipients have codes
of conduct that prohibit students from engaging in consensual sexual
conduct. The Department received comments in the June 2021 Title IX
Public Hearing and in response to the July 2022 NPRM supporting a
broader prohibition on discipline for collateral conduct violations,
such as consensual sexual conduct, and the Department noted that the
concern regarding discipline for consensual sexual conduct had been
raised by plaintiffs in Title IX litigation as well as in OCR's
enforcement practice. 87 FR 41490. As discussed in the July 2022 NPRM,
the Department recognizes that discipline for collateral conduct
violations that may be connected to conduct at issue in a Title IX
complaint, including consensual sexual conduct, may create a barrier to
participation in the recipient's grievance procedures. 87 FR 41490. By
providing protection from collateral discipline for consensual sexual
conduct, the regulations remove this potential barrier to information
sharing in the grievance procedures, which, in turn, promotes a fair
process in which parties, witnesses, and participants are not
discouraged from fully and accurately relating necessary facts.
The Department disagrees with the commenters that the inclusion of
consensual sexual activity in Sec. 106.45(h)(5) is unnecessary. While
the commenters may be correct that many
[[Page 33712]]
postsecondary institutions would not discipline students for consensual
sexual activity, other postsecondary institutions do.
The Department appreciates commenters' requests to clarify why
Sec. 106.45(h)(5) addresses both false statements and consensual
sexual conduct. As discussed in the July 2022 NPRM, in order to provide
an education program or activity free from sex discrimination, a
recipient must implement grievance procedures in a manner 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 education program or activity. Id. Section
Sec. 106.45(h)(5) addresses two concerns--the possibility of
discipline for engaging in consensual sexual activity and the fear of
being accused of false statements--that have repeatedly been raised
about potential barriers to participation in a recipient's grievance
procedures. Addressing these concerns is consistent with the
Department's Title IX authority because, as noted above, Sec.
106.45(h)(5) directly fosters a more equitable sex discrimination
grievance process by protecting all participants from collateral
discipline based solely on a determination whether sex discrimination
occurred, which promotes full and accurate factfinding.
Changes: None.
24. Section 106.45(i) Appeals
Comments: Some commenters appreciated the narrowed scope of the
proposed appeals requirements for several reasons, including that it is
clearer and more streamlined and treats the parties more fairly.
In contrast, other commenters expressed concern that the proposed
regulations only require recipients to offer appeals from a dismissal
of a sex discrimination complaint under proposed Sec. 106.45(d)(3) or
from a determination whether sex-based harassment occurred in a
complaint that involves a postsecondary student under proposed Sec.
106.46(i). Some commenters characterized the Department's interest in
improving the expediency of grievance procedures for some complaints in
an elementary school or secondary school setting as arbitrary,
capricious, and in conflict with case law. These commenters questioned
why the rationale offered in the preamble to the 2020 amendments (i.e.,
increasing the likelihood that recipients reach sound determinations
and giving the parties greater confidence in the ultimate outcome)
would not necessitate a requirement to offer an appeal from any
determinations of whether sex discrimination occurred.
Some commenters interpreted the proposed provisions related to
appeals as a return to Title IX enforcement prior to the 2020
amendments, which they opposed, and urged the Department to retain the
2020 amendments in full.
Some commenters urged the Department to require an appeal from a
determination in sex discrimination complaints generally or for
specific categories of complaints, such as complaints that allege
employee-to-employee sex discrimination, discrimination based on gender
identity, or that a postsecondary institution engaged in
discrimination.
Other commenters suggested amending proposed Sec. 106.45 to
require an elementary school or secondary school to offer an appeal
from a determination in a sex discrimination complaint that is the same
as what the recipient would offer in comparable complaints. The
commenters asserted that such a revision would prevent an elementary
school or secondary school from providing fewer opportunities to appeal
a sex discrimination complaint than other comparable complaints, which
one commenter stated could constitute sex discrimination itself.
Commenters also suggested that such a revision would prevent an
elementary school or secondary school from providing greater appeal
rights for a sex discrimination complaint than other comparable
complaints, which one commenter stated could reinforce a belief that
sex-based harassment is exceptional as compared to other forms of
harassment.
Other commenters requested guidance on what sort of appeal process
is permitted or required under Sec. 106.45.
Discussion: The Department acknowledges comments that supported the
narrowed scope of the proposed appeals requirements but is persuaded by
commenters' recommendation to require a recipient to offer an appeal
process from a determination arising out of a sex discrimination
complaint that is the same as it offers in other comparable
proceedings. Specifically, the Department recognizes that a recipient
may have existing appeal procedures for other offenses in its code of
conduct that may reflect certain values of its educational community
related to student discipline, advance other institutional interests in
a broad array of disciplinary cases, or be guided by other historical
or legal factors. The Department also notes that offering the
opportunity to appeal a determination in proceedings related to other
student conduct violations, while denying the same opportunity for sex
discrimination complaints, may give rise to confusion, the perception
of unfairness, and resentment in ways that are counterproductive to
preventing and responding to sex discrimination in the recipient's
education program or activity.
Accordingly, the Department has added a new Sec. 106.45(i) in
these final regulations to state that, in addition to an appeal of a
dismissal consistent with Sec. 106.45(d)(3), a recipient must offer
the parties an appeal process that, at a minimum, is the same as it
offers in all other comparable proceedings, if any, including
proceedings relating to other discrimination complaints. Final Sec.
106.45(i) also clarifies that, for complaints of sex-based harassment
involving a postsecondary student, a postsecondary institution must
also offer an appeal on the bases set out in Sec. 106.46(i)(1). This
addition is consistent with the Department's view, stated in the July
2022 NPRM and reiterated here, that for complaints of sex
discrimination, other than complaint dismissals or final determinations
of complaints of sex-based harassment involving a student at a
postsecondary institution, a recipient has discretion to decide whether
the opportunity to appeal a determination would be appropriate for a
given type of complaint, as long as a recipient does not exercise this
discretion arbitrarily. 87 FR 41489. Accordingly, final Sec. 106.45(i)
includes protections against the kind of arbitrary decisionmaking
referenced in the preamble to the July 2022 NPRM. For the same reasons,
the Department declines to require specific categories of appeals in
Sec. 106.45(i), such as for complaints alleging discrimination based
on gender identity or complaints alleging employee-to-employee sex
discrimination, when a recipient does not provide them for comparable
proceedings. The Department recognizes that recipients have obligations
under Federal law to employees under Title VII and Title IX and may
also have obligations under other State or local laws, which may
require processes that are specifically adapted for employee-to-
employee complaints and may include the opportunity to appeal a
determination.
The Department declines to require a postsecondary institution to
offer an appeal of a complaint that alleges a recipient engaged in sex
discrimination because other provisions in Sec. 106.45 sufficiently
account for the power differentials in such complaints. Specifically,
requirements related to the equitable treatment of the parties under
Sec. 106.45(b)(1); decisionmakers being
[[Page 33713]]
free of bias or conflicts of interest under Sec. 106.45(b)(2);
guidelines for ensuring the objective evaluation of relevant and not
otherwise impermissible evidence and the adequate, reliable, and
impartial investigation of the complaint under Sec. 106.45(b)(6) and
(f)(1); the opportunity for parties to present and access relevant and
not otherwise impermissible evidence under Sec. 106.45(f)(2) and (4);
and guidelines for how a decisionmaker must assess such evidence and
credibility under Sec. 106.45(b)(6), (f)(3), and (g) address power
differentials in such complaints by ensuring an objective and
transparent investigation, impartial decisionmaker, and a meaningful
opportunity for a complainant to respond to evidence prior to the
determination whether sex discrimination occurred. These requirements
provide procedural safeguards in how a recipient must resolve sex
discrimination complaints in more types of proceedings than were
previously required under the 2020 amendments. See 34 CFR 106.8(c),
106.45 (requiring a recipient to adopt and publish grievance procedures
that provide for the prompt and equitable resolution of sex
discrimination complaints, but only outlining procedural requirements
for complaints that allege sexual harassment). The Department again
reiterates that, consistent with final Sec. 106.45(i), a recipient
must offer the opportunity to appeal the outcome of a sex
discrimination complaint against a recipient if it provides such a
process for other comparable proceedings, including other
discrimination complaints.
The Department also appreciates the opportunity to note that,
despite some commenters' objections, balancing equity with promptness
in grievance procedures has been a requirement in Title IX regulations
since 1975 (see 34 CFR 106.8(c); 40 FR 24139), and it is the
Department's view that promptness in grievance procedures serves Title
IX's nondiscrimination mandate by avoiding unnecessary delay in the
resolution of sex discrimination complaints. Commenters cited no case
law, and the Department is unaware of any, that indicates this view is
contrary to Title IX.
The Department notes that nothing in the final regulations prevents
a recipient from adopting additional appeal provisions in its grievance
procedures as long as such provisions apply equally to the parties,
including notification of any such procedures and the permissible bases
for appeal, consistent with Sec. 106.45(h)(2). The Department also
notes that the final regulations do not require recipients to adopt a
specific timeframe for an appeal and that a recipient has discretion to
set its own reasonably prompt timeframe for implementing appeals under
Sec. 106.45(i). See Sec. 106.45(b)(4) and related discussion.
Changes: The Department has added to the final regulations a new
Sec. 106.45(i), requiring that, in addition to an appeal of a
dismissal consistent with Sec. 106.45(d)(3), a recipient must offer
the parties an appeal process that, at a minimum, is the same as it
offers in all other comparable proceedings, if any, including
proceedings relating to other discrimination complaints. Final Sec.
106.45(i) also clarifies that, for complaints of sex-based harassment
involving a postsecondary student, a postsecondary institution must
offer an appeal on the bases set out in Sec. 106.46(i)(1). As a result
of this addition, the Department has redesignated proposed Sec.
106.45(i) and (j) as Sec. 106.45(j) and (k).
25. Section 106.45(j) Additional Provisions
Comments: The Department notes that proposed Sec. 106.45(i) has
been redesignated as Sec. 106.45(j) in the final regulations, and the
following comment summaries and discussion refer to the provision as
Sec. 106.45(j) for ease.
One commenter suggested changing ``equally'' to ``equitably'' to
align with the examples provided in the preamble to the July 2022 NPRM,
which the commenter viewed as examples of equitable rather than equal
treatment. Another commenter suggested that the Department modify Sec.
106.45(j) to recognize that shared governance and collective bargaining
are important means to allow a recipient to exercise its discretion to
adopt practices not required by the regulations and suggested involving
faculty in developing grievance procedures through shared governance
and collective bargaining agreements.
Discussion: 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 [or Sec. 106.46].'' 85 FR 30209. The 2020 amendments require
that any additional provisions that a recipient adopts as part of its
grievance procedures must apply equally to the parties. The Department
did not propose removing that requirement in the July 2022 NPRM.
Instead, the Department proposed moving the requirement from Sec.
106.45(b) to Sec. 106.45(i) and broadening it to apply to grievance
procedures for all forms of sex discrimination, not only sexual
harassment. The final regulations include this requirement at Sec.
106.45(j).
The Department declines to change ``equally'' to ``equitably'' in
Sec. 106.45(j). As explained above, the Department is maintaining the
requirement from the 2020 amendments that any additional provisions a
recipient adopts as part of its grievance procedures must apply equally
to the parties. Consistent with the Department's position in the 2020
amendments, the examples offered by the Department in the preamble to
the July 2022 NPRM clarify for recipients that, while any additional
provisions a recipient adopts in its grievance procedures must be
applied equally to the parties, identical treatment of both parties is
not always required in the implementation of those provisions. 87 FR
41491 (citing 85 FR 30186). A recipient is permitted to take into
account the individual needs and circumstances of a person when
applying the additional provisions. See 85 FR 30189. For example, a
provision under which a recipient offers disability accommodations or
an interpreter as part of its grievance procedures applies equally to
the parties even if only one party needs and receives such
accommodations or an interpreter. The recipient does not have to
provide an interpreter or disability accommodation to any party that
does not need one simply because another party that does need one is
receiving one. The fact that the parties had an equal opportunity to
receive an accommodation or an interpreter as needed is enough to
satisfy Sec. 106.45(j). For additional information regarding equitable
treatment of the parties, see the discussion of Sec. 106.45(b)(1).
The Department acknowledges that a recipient may use shared
governance and collective bargaining to adopt additional rules and
practices beyond those required by the final regulations and that some
employees have additional rights created by shared governance and
collective bargaining agreements. This is permissible under the final
regulations and consistent with the Department's statement in the July
2022 NPRM that nothing in the final regulations precludes a recipient's
Title IX grievance procedures from recognizing that employee parties
have additional rights in a collective bargaining agreement or other
shared governance policy. See 87 FR 41491. The Department also notes
that as explained in the July 2022 NPRM and as discussed above,
identical treatment is not always required in the application of any
additional rules or practices, and, as such, the Department recognizes
that
[[Page 33714]]
employee parties may have distinct rights in a shared governance or
collective bargaining agreement that are not applicable to parties who
are not employees. See id. The Department further notes that the final
regulations do not make any changes to 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.'' These
final regulations permit recipients to use existing grievance
procedures under collective bargaining agreements, as long as they
comply with these final regulations. The Department reminds recipients
that under Sec. 106.45(b)(8), if a recipient adopts grievance
procedures that apply to the resolution of some, but not all
complaints, the recipient must articulate consistent principles for how
the recipient will determine which procedures apply.
The Department understands that a postsecondary institution may
involve faculty in developing its Title IX grievance procedures through
a shared governance or collective bargaining process, and these final
regulations do not preclude faculty participation in a postsecondary
institution's efforts to address sex discrimination under Title IX. A
recipient has discretion to determine how best to develop its Title IX
grievance procedures, including how and whether to involve faculty
through shared governance, in accordance with Sec. 106.45, and if
applicable Sec. 106.46.
Changes: Proposed Sec. 106.45(i) has been redesignated as Sec.
106.45(j) in the final regulations.
26. Section 106.45(l) Range of Supportive Measures and Disciplinary
Sanctions and Remedies
Comments: The Department notes that proposed Sec. 106.45(k) has
been redesignated as Sec. 106.45(l) in the final regulations, and for
ease the following comment summaries and discussion refer to the
provision as Sec. 106.45(l).
Some commenters opposed Sec. 106.45(l), arguing that section Sec.
106.45(b)(1)(ix) of the 2020 amendments has been upheld by courts and
that proposed Sec. 106.45(l)(2) is inconsistent with the Clery Act
requirements to list sanctions.
Some commenters requested that the Department move proposed Sec.
106.45(l) to proposed Sec. 106.46 because paragraph (l) would apply
only to cases alleging sex-based harassment.
Some commenters requested clarification about disciplinary
sanctions, including whether a Title IX Coordinator has authority to
bring civil or criminal charges against a respondent and what sanctions
a recipient can impose on a respondent, including after the respondent
has graduated.
Discussion: The Department acknowledges commenters' opposition to
modifying the 2020 amendments. As explained in the July 2022 NPRM,
Sec. 106.45(l)(1) maintains the requirement previously in Sec.
106.45(b)(1)(ix) of the 2020 amendments that a recipient include a
description of the range of supportive measures available to a
complainant and respondent in its grievance procedures for sexual
harassment claims. See 87 FR 41492. Similarly, the Department has
maintained the existing requirement (previously in Sec.
106.45(b)(1)(vi) of the 2020 amendments) that a recipient must either
describe the range of possible disciplinary sanctions and remedies that
a recipient may impose after completion of the grievance procedures for
sexual harassment claims or list the possible disciplinary sanctions
and remedies. These requirements will continue to ensure that a
recipient is transparent about its variety of supportive measures,
disciplinary sanctions, and remedies. In response to the commenter's
request for clarification, a recipient may impose on a respondent only
disciplinary sanctions that are set forth in the range or list of
possible disciplinary sanctions that a recipient may impose, including
after a respondent has graduated.
The Department disagrees that Sec. 106.45(l) should be modified to
mirror the Clery Act by requiring a list of sanctions. See 20 U.S.C.
1092(f)(8)(B)(ii). Consistent with the Department's position in the
preamble to the 2020 amendments, these final regulations do not alter
requirements under the Clery Act or its implementing regulations. See
85 FR 30384. If the Clery Act applies to a recipient, the recipient
must provide a list of sanctions that the postsecondary institution may
impose following a disciplinary proceeding based on an allegation of
rape, acquaintance rape, dating violence, domestic violence, sexual
assault, or stalking. 20 U.S.C. 1092(f)(8)(B)(ii). Such a list also
satisfies the requirement in Sec. 106.45(l)(2) to describe the range
of possible disciplinary sanctions or list the possible disciplinary
sanctions that a recipient may impose on a respondent at the conclusion
of grievance proceedings regarding sex-based harassment. However, if a
recipient intends to impose additional types of disciplinary sanctions
in cases involving sex-based harassment that are not covered by the
Clery Act (e.g., quid pro quo and hostile environment), a recipient
would need to supplement any list required by the Clery Act to describe
the range of such sanctions or provide a list of such sanctions under
Sec. 106.45(l)(2). The Department notes that the requirements of the
Clery Act were designed to fit the population, environment, and
traditional procedures used by postsecondary institutions. Section
106.45(l) applies to elementary schools, secondary schools, and to
types of conduct outside of the Clery Act's scope. The Department
maintains that it is appropriate for elementary schools and secondary
schools and other recipients to retain discretion in imposing sanctions
in cases involving sex-based harassment while also ensuring that the
parties know the sanctions that may be imposed upon a determination
that sex-based harassment occurred. Accordingly, the Department will
continue to allow recipients to describe the range of possible
sanctions or list all possible sanctions. Because the Department is
retaining the language in Sec. 106.45(l)(2) that permits a recipient
to provide a range of possible disciplinary sanctions and remedies as
an alternative to a list, it is not necessary to add language
permitting a recipient to utilize a disciplinary sanction or remedy
that is not contained in the recipient's list.
In order to further clarify that a recipient may list, or describe
the range of, the possible disciplinary sanctions that a recipient may
impose and remedies that the recipient may provide following a
determination that sex-based harassment occurred, the Department has
revised Sec. 106.45(l)(2) from ``Describe the range of, or list,'' to
``List, or describe the range of.''
The Department declines to move Sec. 106.45(l) to Sec. 106.46
because the additional requirements in Sec. 106.46 are limited to sex-
based harassment complaints involving a student at a postsecondary
institution. Although Sec. 106.45(l) applies only to sex-based
harassment complaints, it applies to all recipients, including
elementary schools and secondary schools. Proposed Sec. 106.45(l) and
the prior language in Sec. 106.45(b)(1)(vi) under the 2020 amendments
provide consistency, predictability, and transparency about the range
of consequences all students can expect from the outcome of grievance
procedures regarding sex-based harassment. It is important to provide
all students, faculty, and other personnel subject to a sex-based
harassment complaint, including those at the elementary school and
secondary school levels, with this information.
The Department appreciates the opportunity to clarify that a Title
IX
[[Page 33715]]
Coordinator does not have the authority to bring civil or criminal
charges against a respondent. The Department declines to specify the
disciplinary sanctions a recipient may impose on a respondent,
including after the respondent has graduated, which may vary depending
on the type of recipient, the population it serves, State laws, and
other factors. The Department respects a recipient's discretion to make
disciplinary decisions under its own code of conduct as long as it
complies with Sec. 106.45, and if applicable Sec. 106.46, before the
imposition of any disciplinary sanctions against a respondent.
Changes: Proposed Sec. 106.45(k) has been redesignated as Sec.
106.45(l) in the final regulations. The Department has also revised
Sec. 106.45(l) to require recipients to ``List, or describe the range
of'' the possible disciplinary sanctions that the recipient may impose
and remedies that the recipient may provide following a determination
that sex-based harassment occurred.
E. Grievance Procedures for the Prompt and Equitable Resolution of
Complaints of Sex-Based Harassment Involving a Student Complainant or
Student Respondent at Postsecondary Institutions 60
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\60\ The comments, discussion, and changes for Sec. 106.46(a)
are included in the section on Sec. 106.45(a)(1).
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1. Section 106.46(b) Student-Employees
Comments: Some commenters supported proposed Sec. 106.46(b)
because it would provide appropriate guidance to postsecondary
institutions without being overly prescriptive.
Other commenters did not support proposed Sec. 106.46(b). For
example, one commenter stated that the Department did not explain how
the two factors a postsecondary institution must 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--relate
to one another. Another commenter was concerned that proposed Sec.
106.46(b) would not address a postsecondary institution's ability to
take adverse employment action against a student-employee who is
alleged to have perpetrated sex-based harassment.
One commenter asked the Department to add language stating that
complainants or respondents shall only be subject to one resolution
process for a complaint, either Sec. Sec. 106.45 or 106.46, as
determined by the fact-specific inquiry.
Discussion: The Department agrees with commenters that proposed
Sec. 106.46(b) will assist a postsecondary institution in making an
appropriate determination regarding whether the grievance procedure
requirements in Sec. 106.46 apply to complaints involving a party who
is both a student and an employee. The Department also agrees it is
important for postsecondary institutions to consider the needs of
student-employees and that the fact-specific inquiry in Sec. 106.46(b)
enables postsecondary institutions to do so.
The Department appreciates this opportunity to further explain in
response to comments how the two factors in Sec. 106.46(b) relate to
one another. Section 106.46 potentially applies based on the student-
employee's status as a student in a postsecondary institution (when the
other party is not a student) if, after undertaking a fact-specific
inquiry, the institution determines either that the student-employee's
primary relationship with the institution is to receive an education;
or that the alleged sex-based harassment occurred while the student-
employee was engaged in an education-related activity (rather than
performing employment-related work); or both. Satisfying either one of
these factors would be sufficient for Sec. 106.46 to apply but would
not require that Sec. 106.46 apply. Whether Sec. 106.46 applies for a
complaint involving a party who is both a student and an employee is
ultimately a fact-specific inquiry in which the recipient may consider
any other factors the postsecondary institution reasonably deems
appropriate and then determine, in light of all the factors, whether to
apply Sec. 106.46. Because such an inquiry is fact-specific, and
student employment at postsecondary institutions depends on a number of
factors, it is not appropriate to prescribe how a postsecondary
institution must weigh these factors, instead leaving that to the
institution's discretion. Doing so will enable a postsecondary
institution to take into account any unique needs of its educational
community, consider additional relevant factors in determining whether
a party is primarily a student or an employee, and take into account
any applicable Federal, State, or local law and any collective
bargaining or other employment agreements.
If, after conducting a fact-specific inquiry, a postsecondary
institution determines that the grievance procedure requirements in
Sec. 106.46 do not apply, the postsecondary institution must still
comply with the grievance procedure requirements in Sec. 106.45. The
grievance procedure requirements in Sec. 106.45 appropriately ensure
that a recipient can respond to sex-based harassment involving
employees promptly and equitably as required by Title IX, while also
providing appropriate procedural protections for employees. See 87 FR
41458-59.
In response to a commenter's concern that proposed Sec. 106.46(b)
would not address a postsecondary institution's ability to take adverse
employment action against a student-employee who is alleged to have
perpetrated sex-based harassment, the Department notes that nothing in
Sec. 106.46(b) prohibits a postsecondary institution from imposing a
disciplinary sanction against a respondent who is both a student and an
employee if, after the conclusion of the applicable grievance
procedures, the postsecondary institution determines that sex-based
harassment occurred. The final regulations at Sec. 106.2 define
``disciplinary sanctions'' as consequences imposed on a respondent
following a determination under Title IX that the respondent violated
the recipient's prohibition on sex discrimination and do not preclude a
postsecondary institution from imposing an adverse employment action as
a disciplinary sanction. In addition, the final regulations at Sec.
106.44(i) permit a recipient to place a student-employee respondent on
administrative leave from employment responsibilities during the
pendency of the recipient's grievance procedures.
The Department also declines to add language stating that
complainants or respondents will be subject to only one resolution
process for student or employee complaints, as determined by the fact-
specific inquiry, because it is sufficiently clear from the structure
of these regulations that a person would only be subject to a single
set of Title IX grievance procedures for a particular complaint of sex
discrimination. The Department clarifies that when a complainant or
respondent is both a student and an employee of a postsecondary
institution, the postsecondary institution must use the fact-specific
inquiry in Sec. 106.46(b) to determine whether the grievance
procedures in Sec. 106.46 apply, or whether the complaint will be
governed solely by the procedures in Sec. 106.45.
Changes: None.
2. Section 106.46(c) Written Notice of Allegations
Comments on Proposed Sec. 106.46(c)
Comments: Commenters addressed the Department's proposal in Sec.
106.46(c) to maintain, eliminate, or clarify various components of
Sec. 106.45(b)(2) in the
[[Page 33716]]
2020 amendments. For example, commenters addressed the appropriateness
of including in proposed Sec. 106.46(c) a statement that the
respondent is presumed not responsible and whether proposed Sec.
106.46(c)(1)(ii) permissibly applies to respondents or would give
respondents an advantage by creating a delay between notice and an
opportunity to be heard. Another commenter urged the Department to
revise proposed Sec. 106.46(c)(2)(ii) to notify parties that the
person they choose to serve in the role of advisor set out in paragraph
(e)(2) may not also serve as a witness in the grievance procedures.
Some commenters expressed concern that proposed Sec. 106.46(c)(2)(iv)
contradicts proposed Sec. 106.45(h)(5). Some commenters urged the
Department to require recipients to notify parties of a recipient's
prohibition on knowingly making false statements only when the
recipient includes a parallel notice for all disciplinary matters.
Other commenters expressed support for proposed Sec. 106.46(c)(3),
which would allow recipients to notify respondents of allegations after
they have taken steps to address concerns for the safety of any person
that would arise as a result of providing the notice, such as
protecting complainants who allege dating and domestic violence from
their abusers. Some commenters requested that the Department provide
more specificity about this provision, including with respect to what
may qualify as a ``legitimate concern for safety,'' timeframes for
delaying notice, and the need to document the justification for any
delay.
Discussion: The Department notes that proposed Sec. 106.46(c) has
been revised and renumbered, and the following discussion refers to the
provisions in the final regulations unless we specify the proposed
provisions. The Department acknowledges the comments about the
intersection of Sec. Sec. 106.45(b)(3) and 106.46(c) and the impact of
such interaction on Sec. 106.46(c)(1)(i). Section 106.46(c)(1)(i)
requires that the written notice of allegations include a statement
that the respondent is presumed not responsible for the alleged conduct
until a determination whether sex-based harassment occurred is made at
the conclusion of the grievance procedures.
The Department disagrees with a commenter who argued that giving
the respondent time to prepare for an interview is unfair or
inconsistent with Title IX. These elements of Sec. 106.46 are an
important part of a grievance process that is designed to be fair to
all parties and lead to reliable outcomes to further Title IX's
nondiscrimination mandate. The notice of allegations must be provided
to the parties whose identities are known, including respondents and
complainants.
In response to a comment observing that proposed Sec.
106.46(c)(2)(i) referenced parties' ability to present evidence to
``a'' decisionmaker, the Department appreciates the opportunity to
clarify that a recipient may have more than one decisionmaker and that
the reference to ``a'' decisionmaker is not intended to suggest
otherwise. If a recipient has more than one decisionmaker, its written
notice of allegations must assure parties that they will have an
opportunity to present relevant and not otherwise impermissible
evidence to those trained, impartial decisionmakers.
The Department disagrees with a commenter's suggestion to require
the notice of allegations to specify that a party's advisor may not
also serve as a witness. As explained in more detail in the discussion
of Sec. 106.46(e)(2), a recipient may establish restrictions regarding
the role an advisor may play in grievance procedures, and the
decisionmaker should consider a witness's relationship to a party when
making credibility assessments, but a prohibition on an individual
serving as both a party's advisor and a witness is not warranted, and
the Department declines to require notice of such a specification.
The Department appreciates the opportunity to clarify that the term
``receive'' in proposed Sec. 106.46(c)(2)(iii) was not intended to
convey a right for a party to keep a copy of any evidence. As explained
in the discussion of Sec. 106.46(e)(6), an institution has discretion
to determine whether it will provide access to the relevant and not
otherwise impermissible evidence or to a written investigative report
that accurately summarizes this evidence. Under Sec. 106.46(e)(6), a
postsecondary institution has the discretion to determine the mode of
providing access to the investigative report or to the underlying
evidence, such as electronic copies, physical copies, or inspection of
the institution's copies; however, the institution must exercise this
discretion in a manner that ensures that the parties have an equal
opportunity to access the evidence. See Sec. 106.46(e)(6)(i), (ii). To
avoid possible confusion and to more closely align the required
contents of the notice of allegations with the text of Sec.
106.46(e)(6), the Department deleted the term ``receive'' in Sec.
106.46(c)(1)(iii) so that the final regulations state that the parties
are ``entitled to an equal opportunity to access'' the evidence or
investigative report.
The Department does not view final Sec. 106.46(c)(1)(iii) as
impermissibly conflicting with FERPA. As described in more detail in
the discussion of Sec. 106.46(e)(6) below, under FERPA, an eligible
student generally has a right to ``inspect and review'' records, files,
documents, and other materials that are directly related to the student
and maintained by a postsecondary institution. 20 U.S.C. 1232g(a). The
final regulations provide parties an equal opportunity to access the
evidence that is relevant to the allegations of sex-based harassment
and not otherwise impermissible. But to the extent access to the
evidence would conflict with FERPA, the override provision in GEPA, as
set forth in 20 U.S.C. 1221(d) and incorporated into the Title IX
regulations at Sec. 106.6(e), would apply to permit the disclosure as
required by the final Title IX regulations.
The Department disagrees that Sec. 106.46(c)(1)(iv) conflicts with
Sec. 106.45(h)(5). Section 106.46(c)(1)(iv) appropriately alerts
parties when the recipient's own code of conduct has a policy against
making false statements in a disciplinary proceeding, so that both
parties understand that risk. Section 106.45(h)(5) prohibits the
discipline of a party, witness, or participant for making a false
statement ``based solely on the recipient's determination whether sex
discrimination occurred.'' While a recipient may discipline a person
for making a false statement in a Title IX grievance procedure, it may
not find that the person made a false statement based solely on whether
the decisionmaker found the respondent responsible for sex
discrimination. As explained in the July 2022 NPRM, to discipline a
person for making a false statement, the recipient would have to find
that the person made the statement knowing that it was false or that
the person made it in bad faith. 87 FR 41494-95. The Department also
removed the phrase ``any provision in'' from final Sec.
106.46(c)(1)(iv) so that the paragraph more naturally flows from the
stem in Sec. 106.46(c)(1).
Similarly, Sec. 106.45(h)(5) addresses concerns about protecting
those participating in a grievance procedure from inappropriate
discipline that would chill participation in Title IX grievance
procedures, but the section also maintains the recipient's discretion
to discipline those who make false statements if the basis for alleging
false statements is evidence other than the outcome of the grievance
procedures. Although any potential discipline
[[Page 33717]]
associated with participation in Title IX grievance procedures could
have a chilling effect, the Department recognizes that a recipient has
a legitimate interest in holding students accountable for knowingly
deceitful statements and in preserving the reliability of its
determinations in Title IX grievance procedures. In revising Sec. Sec.
106.45(h)(5) and 106.46(c)(1)(iv), the Department carefully balanced
the important interests in encouraging full and honest participation in
Title IX grievance procedures. See also discussion of Sec.
106.45(h)(5).
The Department disagrees with the commenter's suggestion to require
notification of a recipient's prohibition on knowingly making false
statements only when the recipient includes a parallel notice for all
disciplinary matters. Nothing prevents a recipient from including such
a notification as part of its disciplinary process for other violations
of a its code of conduct, but the value of knowing the risk of such
discipline to a participant in Title IX grievance procedures does not
depend on whether notice is provided with respect to other disciplinary
matters.
The Department agrees with commenters that protecting survivors of
dating and domestic violence from their abusers is important. Section
106.46(c)(3) gives recipients appropriate flexibility to reasonably
delay providing written notice of the allegations to address concerns
for the safety of any person as a result of providing the notice. The
Department notes that delay may be justified based on a need to address
a concern for the safety of any person, including a complainant, a
respondent, or other person.
With respect to commenters' questions as to what constitutes a
``legitimate concern for safety,'' the Department seeks to use
consistent and accessible terminology throughout the final regulations
to the extent appropriate. The final regulations have therefore been
revised to permit delay in providing the written notice of allegations
to address ``reasonable'' safety concerns, which more closely aligns
with the language of Sec. 106.44(f)(1)(v)(A)(2) and is more common and
familiar.
The Department appreciates the opportunity to clarify that a
determination as to whether a concern for safety is reasonable
necessarily begins with the particular allegations and particular
individuals involved and may take into account factors such as any
history of violent or abusive conduct, any credible threats of self-
harm or harm to others, whether a person needs to secure different
housing or a schedule change, or evidence of substance abuse. Section
106.46(c)(3) specifies that the analysis must be individualized and
must not rely on mere speculation or stereotypes.
With respect to the timeframe within which notice must be provided
after a delay, the Department notes that these determinations will
depend on the steps that need to be taken to address the safety
concern. For example, if the recipient determines that a complainant
lives with the respondent and needs to secure a safe place to stay, the
delay should not exceed the amount of time it takes for the complainant
to relocate. A recipient may not, however, unreasonably delay providing
the notice. The notice may be delayed only to the extent necessary to
address reasonable safety concerns, and the recipient must always
provide notice with sufficient time for the parties to prepare a
response before any initial interview. Further, the Department notes
that under Sec. 106.8(f), a recipient must maintain records
documenting its implementation of the requirements of Sec. 106.46,
including the justification for any delay in providing the notice of
allegations under Sec. 106.46(c)(3).
Changes: In Sec. 106.46(c)(1)(i), the Department replaced the
reference to ``106.45(c)'' with ``106.45(c)(1)(i) through (iii).'' The
Department also removed the phrase ``any provision in'' from Sec.
106.46(c)(1)(iv). Finally, the Department has replaced two uses of the
term ``legitimate'' in Sec. 106.46(c)(3) with ``reasonable.''
Other Clarifications to Regulatory Text
Comments: None.
Discussion: The Department observed some inconsistencies between
the text of proposed Sec. 106.46(c) and other sections of the
regulations.
To more closely align the structure and content of Sec. 106.46(c)
with Sec. 106.45(c), and to improve clarity, the Department revised
Sec. 106.46(c) to begin with the general requirement to provide the
written notice and moved the requirement that the notice be provided
with sufficient time for the parties to prepare a response before any
initial interview to that first sentence of Sec. 106.46(c). The
Department further revised Sec. 106.46(c) to begin numbering of
paragraph (1) after that first sentence to cover the required contents
of the written notice. Section 106.46(c)(1) requires that the notice
include all information required under Sec. 106.45(c)(1)(i) through
(iii). The Department removed proposed Sec. 106.46(c)(1)(ii) as
redundant in light of other changes to Sec. 106.46(c).
For consistency with other provisions in the regulations, the
Department also revised Sec. 106.46(c)(1)(i) and (iii) to clarify that
two of the rights listed in the written notice of allegations--to
present evidence to the decisionmaker and to receive access to
evidence--are limited to ``relevant and not otherwise impermissible''
evidence. To ensure clarity and consistency with Sec. 106.46(e)(6),
the Department further revised proposed Sec. 106.46(c) to require a
postsecondary institution to inform the parties that, if the recipient
provides access to an investigative report, the parties may also
request--and then must receive--access to the relevant and not
impermissible evidence under Sec. 106.46(e)(6)(i).
The Department also observed that proposed Sec. 106.46(c) lacked a
paragraph on the obligation to provide notice of additional
allegations, consistent with Sec. 106.45(c)(2). To clarify this
obligation under Sec. 106.46(c), the Department added, at Sec.
106.46(c)(2), a statement that, if a recipient decides to investigate
additional allegations of sex-based harassment by the respondent toward
the complainant that were not included in the original written notice
of allegations or that were included in a complaint that is
consolidated under Sec. 106.45(e), the recipient must provide written
notice of those additional allegations to the parties whose identities
are known.
Changes: The Department revised the first sentence of Sec.
106.46(c) to include language requiring that the notice be provided
with sufficient time for the parties to prepare a response before any
initial interview and renumbered the remaining paragraphs so that Sec.
106.46(c)(1) outlines the required contents of the written notice.
Proposed Sec. 106.46(c)(1)(ii) has been removed. In Sec.
106.46(c)(1)(i), the Department has added the words ``and not otherwise
impermissible'' after the word ``relevant.'' The Department has also
deleted the term ``receive'' in Sec. 106.46(1)(2)(iii) and added the
clause ``and if a postsecondary institution provides access to an
investigative report, the parties may request and then must receive
access to the relevant and not otherwise impermissible evidence'' at
the end of that paragraph. The Department added Sec. 106.46(c)(2) to
clarify the obligation to provide written notice of additional
allegations.
3. Section 106.46(d) Dismissal of a Complaint
Comments: Some commenters supported Sec. 106.46(d) because it
would require simultaneous notice of dismissal to both parties. Other
commenters
[[Page 33718]]
recommended that the Department modify Sec. 106.46(d) to require a
recipient to notify a respondent of a dismissal only if the respondent
had notice of the underlying complaint, noting that a complaint may be
dismissed before the respondent has notice of it because it has been
withdrawn by the complainant, there has been reasonable delay by the
recipient to prepare interim safety measures for the complainant, or
other circumstances.
Discussion: For the same reasons explained in the discussion of
Sec. 106.45(d)(3), the Department is persuaded by commenters'
recommendation that the Department modify Sec. 106.46(d)(1) so that,
when a complaint is dismissed before the respondent has been notified
of the allegations, a recipient need only provide the complainant, and
not the respondent, with written notice of the dismissal. The
Department agrees that notifying a respondent of the dismissal of a
complaint for which they had no prior notice would likely cause
confusion and could put a complainant at risk of retaliation or sex
discrimination, particularly in circumstances in which a complainant
withdrew a complaint due to safety concerns. Accordingly, the final
regulations have been revised to address commenters' concerns. The
Department notes that, because Sec. 106.46(a) incorporates the
requirements of Sec. 106.45, a postsecondary institution implementing
grievance procedures under Sec. 106.46 also must comply with Sec.
106.45(d)(3) in providing the parties an opportunity to appeal the
dismissal of a complaint of sex-based harassment. See Notice of
Opportunity to Appeal in discussion of Sec. 106.45(d)(3).
Changes: The Department has revised Sec. 106.46(d)(1) to state
that if dismissal occurs before the respondent has been notified of the
allegations, the recipient must provide written notice of the dismissal
and the basis for the dismissal only to the complainant.
4. Section 106.46(e)(1) Notice in Advance of Meetings
Comments: Commenters generally expressed support for requiring
sufficient notice of meetings. Some commenters supported requiring
sufficient notice of meetings but suggested additional modifications or
clarifications. One commenter suggested requiring a reasonable amount
of time, rather than sufficient time, to give discretion to recipients
and not provide protections for respondents beyond what due process
requires.
Discussion: As noted in the July 2022 NPRM, the Department has not
substantively changed the language in Sec. 106.46(e)(1) from Sec.
106.45(b)(5)(v) in the 2020 amendments other than the overall change in
its prior applicability only to sex-based harassment complaints
involving a student complainant or student respondent at a
postsecondary institution. 87 FR 41496. The Department does not agree
with a commenter's suggestion to substitute ``who will be in
attendance'' for ``participants'' because Sec. 106.46(e)(1) is about
meetings, and it is sufficiently clear that ``participants'' refers to
those who will be attending the meetings. Nor does the Department agree
with a commenter that it is necessary to change the language ``with
sufficient time for the party to prepare'' for the meeting to ``in a
reasonable amount of time before'' the meeting. The phrase ``with
sufficient time for the party to prepare'' permits recipients to
exercise their discretion regarding how far in advance notice must be
given. The provision also applies both to complainants and respondents
and therefore, contrary to a commenter's assertion, is not designed to
benefit only respondents; complainants, much like respondents, may need
time to consult with an advisor, identify witnesses, or otherwise
prepare for a meeting. The Department explained in the July 2022 NPRM
that ensuring sufficient time for participants to prepare, and possibly
consult with others for help preparing, is important for due process,
especially in light of the age, maturity, and independence of
postsecondary students, many of whom may not have extensive experience
with self-advocacy. 87 FR 41496. The Department also notes that
postsecondary institutions are separately required by the Clery Act to
provide ``timely notice of meetings'' 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).
Changes: The Department has made a non-substantive change to
replace ``meetings, investigative interviews, or hearings'' with
``meetings or proceedings'' for consistency with Sec. 106.46(e)(2) and
(3).
5. Section 106.46(e)(2) Role of Advisor
Advisor Generally
Comments: Some commenters supported Sec. 106.46(e)(2) for allowing
students to have an advisor, particularly because postsecondary
students are newly independent and thus may have a greater need for
assistance from an individual in an advisory role. Some of these
commenters noted that Sec. 106.46(e)(2), along with Sec.
106.46(c)(2)(ii), will help to ensure that postsecondary students with
disabilities are able to request and receive the support of an advisor.
Another commenter supported the flexibility of allowing postsecondary
institutions to define the appropriate role for advisors as long as the
rules are applied equally and are consistent with other legal
requirements.
One commenter opposed Sec. 106.46(e)(2) for limiting parties to
one advisor, which forces postsecondary students to choose between the
assistance of a parent or a different advisor. Some commenters opposed
what they characterized as the removal of the right to an advisor, on
due process grounds. A different commenter opposed Sec. 106.46(e)(2)
as conflicting with the rights of unionized employees to have a union
representative at a meeting that might lead to disciplinary action, and
as possibly conflicting with a union's duty to provide fair
representation.
Some commenters urged the Department to extend Sec. 106.46(e)(2)
to require a recipient to permit advisors for all complaints alleging
sex discrimination or for certain categories of complaints. Other
commenters asked the Department to require elementary schools and
secondary schools to provide a right to an advisor, stating that these
schools do not tend to fully comply with their Title IX obligations.
Some commenters noted that employee complaints may have protections
under the Clery Act that include the right to an advisor.
Some commenters urged the Department to require postsecondary
institutions to allow advisors in any type of investigation under Sec.
106.45, with one commenter noting that sex discrimination complaints
frequently involve a power imbalance of a student against the
recipient. Another commenter criticized the Department for failing to
address any harms of excluding advisors in non-sex-based harassment
cases involving postsecondary students. One commenter urged the
Department to provide the right to an advisor without the rest of the
requirements of Sec. 106.46 to sex-based harassment complaints
involving a postsecondary student complainant and an employee
respondent.
Discussion: Section 106.46(e)(2) requires postsecondary
institutions to provide parties with the same opportunities to have an
advisor of their choice present during any meeting or proceeding as
part of the grievance procedures under Sec. 106.46. The Department
notes that the presence of an advisor may violate FERPA;
[[Page 33719]]
however, as explained in the discussion of Sec. 106.6(e), the GEPA
override dictates that Title IX overrides FERPA when there is a direct
conflict. Thus, a postsecondary institution must permit the parties to
have an advisor of their choice as required by Sec. 106.46(e)(2).
In response to a request to allow multiple advisors so that
postsecondary students can receive assistance from an attorney and a
parent, the Department declines to require an institution to allow
parties to be accompanied to meetings and proceedings by multiple
advisors. Requiring an institution to allow multiple advisors is likely
to present scheduling challenges that could delay the proceedings,
create a chilling effect on parties and witnesses due to the presence
of additional individuals, and weaken privacy protections by disclosing
sensitive information to additional individuals. In addition, while a
postsecondary student could choose a parent to be their advisor, the
Department declines to allow parents the automatic right to attend
because, as noted in the discussion of Sec. 106.6(g) in this preamble,
a parent or guardian typically does not have legal authority to
exercise rights on behalf of a postsecondary student. For further
information about the presence of additional individuals at meetings
and proceedings, see the discussion of Sec. 106.46(e)(3).
The Department appreciates the opportunity to clarify that in
grievance procedures in which one party is a postsecondary student and
another party is not, Sec. 106.46(e)(2) requires the postsecondary
institution to permit the non-student party the same opportunity for an
advisor as the postsecondary student to ensure equitable opportunity to
participate under Sec. 106.45(b)(1). For reasons discussed in
Framework for Grievance Procedures for Complaints of Sex Discrimination
(Section II.C), sex-based harassment complaints involving a
postsecondary student complainant and employee respondent must comply
with all of the requirements under Sec. 106.46 (and not simply the
right to an advisor, as suggested by a commenter). The Department also
clarifies that Sec. 106.46(e)(2) provides the parties with the right
to be accompanied to any meeting or proceeding, including interviews
with investigators, by an advisor of the parties' choice.
The Department acknowledges the concerns raised by a commenter
related to the role of labor union representatives in the grievance
procedures. The Department clarifies that nothing in these final
regulations precludes parties from choosing to have a union
representative serve as their advisor in the Title IX grievance
procedures. For information about the presence of a union
representative who is not serving as a party's advisor of choice, see
the discussion of Sec. 106.46(e)(3).
The Department declines to extend the right to an advisor of choice
to complaints outside of Sec. 106.46. In general, students at
postsecondary institutions are differently situated from other parties
to grievance procedures in a way that warrants the right to an advisor
of choice for complaints under Sec. 106.46. Unlike elementary school
and secondary school students, postsecondary students generally have
the authority to act on their own behalf and are generally less likely
to be represented by a parent or guardian throughout their educational
experience, yet they may also not have the sufficient maturity or
experience with self-advocacy to participate in grievance procedures,
which are unique compared to other aspects of the educational
experience, without the assistance of an advisor. Employees may have
access to a union representative or other employee-specific resources,
whereas postsecondary students do not tend to have comparable options.
In addition, the Department views postsecondary students who are
participating in grievance procedures for complaints of sex-based
harassment as differently situated from those who are participating in
grievance procedures for complaints involving other types of sex
discrimination. Complaints of sex-based harassment often involve
multiple parties whose conduct and credibility are subjected to
scrutiny; sensitive material and disputes over the relevance and
permissibility of the evidence; and a student respondent facing
potential disciplinary sanctions. By contrast, complaints of sex
discrimination other than sex-based harassment often allege different
treatment by an employee or by a recipient's policy or practice, such
as different treatment in grading. These cases are less likely to
involve credibility assessments of multiple parties, sensitive
material, or a party that faces disciplinary sanctions. For example, a
complaint alleging discriminatory grading based on sex by a faculty
member in a college math course would likely involve a review of the
grading rubric and a review of the graded examinations of the other
students in the course. While credibility may play a role, it is less
likely to be a central role in the evaluation of this type of
complaint. The Department thus views postsecondary students as able to
meaningfully participate in the Sec. 106.45 grievance procedures for
complaints of other types of sex discrimination without the assistance
of an advisor. The Department disagrees that student complainants
should have the right to counsel under Sec. 106.45 to address any
power imbalance because the numerous procedural safeguards within Sec.
106.45 provide sufficient support for these students and impose various
obligations on the recipient to ensure equitable proceedings.
There is no conflict between Sec. 106.46(e)(2) and Clery Act
protections. The Clery Act protections described in 34 CFR
668.46(k)(2), including the right to an advisor of choice in
disciplinary proceedings, see 34 CFR 668.46(k)(2)(iv), apply to ``cases
of alleged dating violence, domestic violence, sexual assault, or
stalking'' at postsecondary institutions. Dating violence, domestic
violence, sexual assault, and stalking all fall within the scope of
sex-based harassment as defined in Sec. 106.2. The final Title IX
regulations require an advisor of choice in Sec. 106.46(e)(2), which
applies to complaints alleging sex-based harassment involving a
postsecondary student. Thus, the Clery Act and Sec. 106.46(e)(2)
similarly provide the right to an advisor. The Department also notes
that in proceedings involving 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)-
(iv). Recipients are able to comply with these final Title IX
regulations as well as the Department's regulations implementing the
Clery Act.
In response to commenters' due process concerns related to the
Department's changes to the parties' right to an advisor, the
Department emphasizes that the parties to sex-based harassment
grievance procedures involving a postsecondary student retain the right
to an advisor of choice under Sec. 106.46(e)(2). The Department is not
removing any right to an advisor for complaints involving sex
discrimination that is not sex-based harassment because the 2020
amendments do not provide that right: like the final regulations, the
2020 amendments conferred (at Sec. 106.45(b)(5)(iv)), a right to an
advisor only in cases involving formal complaints of sexual harassment.
While the final regulations no longer require a recipient to
provide a right to an advisor at meetings or proceedings in sex-based
harassment cases other than those involving a postsecondary student,
the Department reiterates that
[[Page 33720]]
nothing in these final regulations prohibits parties from having an
advisor of choice outside of the Sec. 106.46 grievance procedures. In
the preamble to the 2020 amendments, the Department stated that the
right to an advisor in formal complaints of sexual harassment under
Sec. 106.45(b)(5)(iv) of the 2020 amendments would make the grievance
process more thorough and fair and would result in more reliable
outcomes. See 85 FR 30297. As discussed in greater detail in Framework
for Grievance Procedures for Complaints of Sex Discrimination (Section
II.C), the Department received significant feedback that the 2020
amendments are too inflexible, are unduly burdensome, and fail to
account for younger students and the unique contexts of elementary
schools and secondary schools. In response, the Department reconsidered
the requirements of the 2020 amendments and removed certain procedures
for complaints under Sec. 106.45. The Department acknowledges that
some commenters raised concerns about the lack of an advisor in
elementary schools and secondary schools and concerns about these
schools' compliance with Title IX; however, the Department views the
assistance of a parent, guardian, or other authorized legal
representative as sufficient to ensure a thorough and fair
investigation and a reliable resolution in the revised grievance
procedures that apply to complaints under Sec. 106.45. The Department
also notes that anyone who believes that a recipient has failed to
comply with Title IX may file a complaint with OCR, which OCR would
evaluate and, if appropriate, investigate and resolve consistent with
these final regulations.
Changes: The Department has made a non-substantive change to
replace ``any meeting or grievance proceeding'' with ``any meeting or
proceeding'' for consistency within Sec. 106.46(e)(2), and for
consistency with Sec. 106.46(e)(1) and (3).
Choice of Advisor
Comments: Some commenters urged the Department to require a
recipient to provide free legal counsel to parties. One commenter
appeared to urge the Department to draw from the ``authorized legal
representative'' language in Sec. 106.6(g), rather than in Sec.
106.46(e)(2), to provide the right to counsel. Other commenters broadly
opposed Sec. 106.46(e)(2) as weakening the right to counsel. Another
commenter expressed concern that Sec. 106.46(e)(2) creates the
impression that an advisor needs to be an attorney.
Some commenters urged the Department to prohibit recipients from
requiring confidential employees to serve as advisors under Sec.
106.46(f) for questioning by an advisor when a party does not have an
advisor of their choice, but to otherwise permit parties to select
confidential employees to serve as their advisor of choice. Other
commenters urged the Department not to allow confidential employees to
serve as advisors without distinguishing between advisors appointed by
the recipient and those selected by the party. Some commenters urged
the Department to clarify that a witness should not be permitted to act
as an advisor in any hearing or should be limited in their role as an
advisor when acting as a witness due to concerns about witness
credibility and the integrity of an investigation or hearing.
One commenter stated that a recipient should be allowed to place
reasonable restrictions on the parties' choice of advisor. Another
commenter urged the Department to modify Sec. 106.46(e)(2)-(3) to
state that, with respect to a student-to-student complaint, the
representative for one student at the hearing must not be an individual
who has academic or professional authority over the other student.
Other commenters suggested allowing a recipient to prevent a person in
a position of authority over the other parties or relevant witnesses
from serving as the advisor. Different commenters asked for further
clarity on the role of the advisor, including how they should be
trained, whom they can be, and whether they require compensation from
recipients.
Discussion: The Department appreciates the range of comments
regarding legal counsel serving as a party's advisor of choice.
Consistent with Sec. 106.45(b)(5)(iv) of the 2020 amendments, Sec.
106.46(e)(2) specifies that a party's advisor of choice may be an
attorney. The Department acknowledges that a party's choice of advisor
may be limited by whether the party can afford to hire an advisor or
must rely on an advisor appointed by the postsecondary institution or
otherwise available without fee or charge. The Department emphasizes
that the status of a party's advisor (i.e., whether the advisor is an
attorney) and the financial resources of any party must not affect the
institution's compliance with Sec. Sec. 106.45 and 106.46, including
the obligations to objectively evaluate the relevant and not otherwise
impermissible evidence, treat complainants and respondents equitably,
and use investigators and decisionmakers who are free from bias or
conflicts of interest. The Department declines to require recipients to
pay for parties' legal counsel or advisors because, as the Department
recognized in the 2020 amendments, the procedural rights provided to
the parties during the grievance procedures afford all parties the
opportunity to engage fully and advance their interests, regardless of
financial ability. See 85 FR 30297. The Department also notes that
while these final regulations do not require an institution to pay for
the parties' advisors, nothing in the final regulations precludes an
institution from choosing to do so. Likewise, nothing in these
regulations precludes an institution from offering to provide attorney-
advisors or non-attorney advisors to the parties, though Sec.
106.46(e)(2) ensures that the parties retain the right to select their
own advisor of choice and decline the institution's offer.
In response to comments suggesting that Sec. 106.46(e)(2) weakens
a party's ability to be represented by counsel, the Department notes
that Sec. 106.46(e)(2)--similar to Sec. 106.45(b)(5)(iv) of the 2020
amendments--specifically allows a party to choose an attorney as their
advisor. In addition, although Sec. 106.46 allows an institution to
establish restrictions regarding the extent to which the advisor may
participate in the grievance proceedings, restrictions on advocates are
a common and accepted part of adversarial proceedings, and are
necessary to ensure orderly and efficient functioning of such
proceedings. The Department also notes that any such restrictions must
apply equally to the parties and thus will not disproportionately
impair the role of either party's advisor. The Department notes that an
institution must not limit the presence of the advisor for a
complainant or respondent in any meeting or proceeding. Further, the
institution's grievance procedures must comply with Sec. 106.46, which
requires an institution to permit certain levels of participation by
advisors (e.g., requirements related to questioning by an advisor in a
live hearing under Sec. 106.46(f)(1)(ii)(B), if an institution employs
that process). The Department disagrees that Sec. 106.46(e)(2)
suggests that the advisor of choice must be an attorney, given that the
language expressly states that the advisor is not required to be an
attorney.
In response to the comment asking the Department to provide the
right to counsel through Sec. 106.6(g), the Department wishes to
clarify that the phrase ``authorized legal representative'' in Sec.
106.6(g) does not refer to legal counsel. Rather, it refers to an
individual who is legally authorized to act on behalf of certain youth,
such as
[[Page 33721]]
youth in out-of-home care, but is not necessarily deemed a parent or
guardian. See discussion of Sec. 106.6(g).
In response to questions regarding whether a confidential employee
may serve as an advisor, the Department wishes to clarify that a party
may choose a confidential employee to serve as their advisor of choice
under Sec. 106.46(e)(2); however, an institution may not appoint or
otherwise require a confidential employee to serve as the postsecondary
institution's advisor of choice to ask questions on behalf of a party
when the party lacks their own advisor of choice. The Department has
revised Sec. 106.46(f)(1)(ii)(B) to state that, when a postsecondary
institution is required to appoint an advisor to ask questions on
behalf of a party for the purpose of conducting questioning at a live
hearing, a postsecondary institution may not appoint a confidential
employee. Requiring a confidential employee to serve as an advisor may
jeopardize that employee's ability to serve as a confidential employee
and could risk disclosing communications that would otherwise be
protected from disclosure under Sec. 106.45(b)(7)(i). Although these
concerns may also be present if a party chooses a confidential employee
to serve as their advisor of choice, preserving a party's choice of
advisor is important enough to accept these concerns when a party has
voluntarily chosen a confidential employee as their advisor. Further, a
party's choice of a confidential employee as their advisor suggests
that the party is not concerned with the confidential employee's
ability to serve as an advisor or with any risk of that employee
disclosing confidential communications.
Given the importance of preserving a party's choice of an advisor,
the Department is not prohibiting a party from selecting an advisor who
has served or who may serve as a witness in the grievance proceedings.
This position is consistent with the position expressed by the
Department in the preamble to the 2020 amendments, in which the
Department acknowledged the potential complications of a witness
serving as an advisor but believed that it would be inappropriate to
preclude a party from selecting an advisor who is also a witness. See
85 FR 30299. The Department maintains, as stated in the preamble to the
2020 amendments, a decisionmaker may consider any conflicts of interest
as part of weighing the credibility and persuasiveness of the advisor-
witness's testimony. See id. The decisionmaker may also consider, as
part of the requirement to assess witness credibility under Sec.
106.46(f)(1), whether the witness was exposed to any information in
their role as advisor that may have influenced their witness testimony.
Institutions may wish to advise parties on the potential complications
of selecting an advisor who might be called as a witness.
It is not necessary or appropriate to place other restrictions on
who may serve as a party's advisor, such as a prohibition on an advisor
who has academic or professional authority over another party. The
Department is not limiting the party's right to select an advisor with
whom the party feels most comfortable and who the party believes will
best assist them during the grievance procedures. The Department does
not view an advisor with authority over another party as jeopardizing
the reliability of the evidence presented or the integrity of the
proceedings and the outcome. The Department notes that Sec.
106.46(e)(2) permits an institution to place equal restrictions on the
advisors' participation in the proceedings, and that Sec. 106.71
prohibits retaliation against anyone who has made a complaint,
testified, assisted, or participated or refused to participate in an
investigation, proceeding, or hearing under Sec. 106.45, and if
applicable Sec. 106.46. The Department declines to require
institutions to mandate advisor training, as this could limit the
parties' ability to select an advisor of their choice based on whether
the advisor has received, or is able to receive, such training. These
final regulations, however, do not preclude a recipient from providing
training for advisors.
Regarding commenters' requests to require the institution to
accommodate the advisor's availability, the Department notes that,
under Sec. 106.46(e)(5), an institution must allow for the reasonable
extension of timeframes on a case-by-case basis for good cause, while
remaining mindful of its obligation to meet its own reasonably prompt
timeframes.
Changes: The Department has clarified in Sec. 106.46(f)(1)(ii)(B)
that if a postsecondary institution chooses to use a live hearing, it
may allow the questions proposed by the party for other parties and
witnesses to be asked by the decisionmaker or by the party's advisor,
and that in those instances in which a postsecondary institution is
required to appoint an advisor to ask questions on behalf of a party
during advisor-conducted questioning, a postsecondary institution may
not appoint a confidential employee to be the advisor.
Restrictions on Advisor's Participation
Comments: Some commenters urged the Department to remove the
language permitting the recipient to establish restrictions on the
extent to which the advisor may participate or to restrict the
limitations that recipients may place on advisors. One commenter asked
the Department to require that an advisor be able to actively
participate in proceedings as much as reasonably practicable. Another
commenter asked the Department to clarify the extent to which a party
may delegate certain functions or communications to their advisor, and
some commenters requested that an advisor be allowed to attend a
hearing in the absence of a party and present evidence on that party's
behalf.
Discussion: Consistent with the Department's position in the
preamble to the 2020 amendments, see 85 FR 30298, the Department
declines to remove the discretion of a postsecondary institution to
restrict an advisor's participation so as not to unnecessarily limit an
institution's flexibility to conduct its grievance procedures that both
comply with Sec. Sec. 106.45 and 106.46 and, in the institution's
judgment, best serve the needs and interests of the institution and its
educational community. If, however, a postsecondary institution permits
questioning by an advisor at a live hearing, under Sec.
106.46(f)(1)(ii)(B), the institution must allow the party's advisor of
choice to conduct the questioning. The final regulations do not specify
what types of restrictions on advisor participation may be appropriate
or what types of functions the advisor may conduct, as the Department
views these determinations as best left to the discretion of the
postsecondary institution.
In response to a comment about whether a party's advisor can attend
a live hearing in lieu of the party, the Department notes that if a
postsecondary institution chooses to conduct a live hearing with
questioning by an advisor, each party has a right to have their advisor
ask relevant and not otherwise impermissible questions and follow-up
questions of any party or witness. Sec. 106.46(f)(1)(ii)(B). A party
retains their right to have their advisor ask questions at the live
hearing even if the party chooses not to appear at the hearing. If a
party refuses to respond to relevant and not otherwise impermissible
questions by not attending the hearing, however, under Sec.
106.46(f)(4), a decisionmaker may choose to place less or no weight on
the statements made by that party. The
[[Page 33722]]
decisionmaker must not, however, draw an inference about whether sex-
based harassment occurred based solely on a party's refusal to respond.
See Sec. 106.46(f)(4). The Department notes that the parties have the
right to request that the live hearing be held with the parties present
in separate locations, and the postsecondary institution must do so
upon the party's request. See Sec. 106.46(g) and the discussions of
Sec. 106.46(f) and (g) of this preamble.
Changes: None.
6. Section 106.46(e)(3) Other Persons Present at Proceedings
Comments: Some commenters expressed general support for Sec.
106.46(e)(3) and encouraged postsecondary institutions to permit
parties to have additional people present as support. Other commenters
opposed Sec. 106.46(e)(3) for excluding parents from disciplinary
proceedings at postsecondary institutions. Some commenters stated that
the need for parental presence is often stronger for college students,
many of whom are legally dependent on their parents until around the
time they arrive at college. In response to the statement in the July
2022 NPRM that college students are more likely to live alone and be
independent than younger students, and that parents are less likely to
be able to exercise legal rights on their behalf, one commenter stated,
without providing further detail, that these assertions are not true
for many college students.
Other commenters urged the Department to allow parties to have both
an advisor and a support person. Some commenters asserted that because
Sec. 106.46(e)(2) permits one advisor, college students need to choose
between legal representation (who can help with legal and technical
aspects but is essentially a stranger) and the emotional support of a
family member or close friend.
Some commenters expressed support for applying Sec. 106.46(e)(3)
to complaints under Sec. 106.45. Commenters stated that many
elementary and secondary students would benefit from a support person
other than a parent or advisor. One commenter asserted that in most sex
discrimination investigations other than those involving sex-based
harassment, students are faced with the intimidating situation of
challenging decisions made by their school or its officials.
By contrast, another commenter urged the Department to prohibit
postsecondary institutions from permitting anyone other than parties
and their advisors to attend sex-based harassment proceedings, noting
concerns with a complainant sharing sensitive information in front of a
respondent's parent, a journalist, or another respondent who was
accused by the same complainant.
Some commenters expressed concern that parties will interpret Sec.
106.46(e)(3) as conferring the right to have persons other than their
advisor present at meetings and proceedings, noting that the presence
of other individuals will generally violate FERPA and proposed Sec.
106.44(j) unless the presence of that individual is required by Title
IX or by law. Alternatively, the commenters asked the Department to
make clear that a postsecondary institution complies with Sec.
106.46(e)(3) by allowing only additional individuals whose presence is
legally required.
Discussion: The Department appreciates the range of opinions
expressed by commenters regarding the postsecondary institution's
discretion to allow parties to have persons other than their advisor
present at any meeting or proceeding, provided that the institution
provides the same opportunities to the parties.
The Department appreciates the opportunity to clarify that Sec.
106.44(j) does not prohibit a postsecondary institution from allowing
parties to have persons other than the parties' advisor present at any
meeting or proceeding because the exception at Sec. 106.44(j)(3)
permits disclosures of personally identifiable information to carry out
the purposes of Title IX and these final regulations, including action
taken to address conduct that reasonably may constitute sex
discrimination. Section 106.44(j)(3) permits an institution to exercise
its discretion under Sec. 106.46(e)(3) to allow the parties to have
persons other than their advisor attend any meeting or proceeding.
The Department also clarifies that, as some commenters noted, Sec.
106.46(e)(3) must be interpreted consistent with a postsecondary
institution's obligations under FERPA. If the presence of persons other
than the party's advisor means that an institution is unable to comply
with FERPA, the institution is not permitted to exercise its discretion
under Sec. 106.46(e)(3) to allow persons other than the parties'
advisors to attend meetings or proceedings. The GEPA override, as
stated in Sec. 106.6(e), is not applicable to permit the presence of
an individual other than the party's advisor whose presence would
violate FERPA. Because Sec. 106.46(e)(3) does not require an
institution to allow the presence of persons other than the party's
advisor, there is no direct conflict between Title IX and FERPA: an
institution can comply with its obligations under both Title IX and
FERPA by not permitting the presence of an individual other than the
party's advisor when the presence would violate FERPA. See discussion
of Sec. 106.6(e). If a party has a constitutional right to the
presence of a particular individual at meetings or proceedings, the
constitutional override would apply to permit the presence of that
individual. The Department also notes that an institution would be able
to allow persons other than the parties' advisors to attend meetings or
proceedings and still comply with FERPA if any student party, witness,
or other participant whose personally identifiable information is
subject to disclosure provides prior written consent.
In addition, a party may be accompanied by a union representative
if the postsecondary institution chooses to provide the parties with
the opportunity to have persons other than the advisor of the parties'
choice present during any meeting or proceeding, provided that the
union representative's presence does not conflict with FERPA. Further,
as noted above, if any student party, witness, or other participant
whose personally identifiable information is subject to disclosure
provides prior written consent to permit the presence of persons other
than the parties' advisors (e.g., a union representative), their
presence will not violate FERPA.
In addition, there are certain situations in which a postsecondary
institution may be required to permit a party to have another person,
in addition to an advisor, present during any meeting or proceeding to
comply with another law. Under the ADA and Section 504, a postsecondary
institution must ensure effective communication for persons with
disabilities through the provision of auxiliary aids and services
(e.g., 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 based on disability.
A postsecondary institution may need to provide language assistance
services under Title VI, such as translations or interpretation for
persons with limited English proficiency. In these situations, a
postsecondary institution must provide the parties with the same
opportunities to have necessary support persons to overcome language-
or disability-based barriers to participation, although this may result
in only one party (e.g., the party with a disability) having another
person present. In situations in which the presence of a person (other
than an
[[Page 33723]]
advisor) may conflict with FERPA but is necessary to comply with
certain antidiscrimination statutes, including Title VI, the ADA, and
Section 504, the override provision in GEPA, as set forth in 20 U.S.C.
1221(d), would apply to permit the other person to attend a meeting or
proceeding to ensure the party can engage fully in the grievance
procedures.\61\ The Department does not believe that it is necessary to
revise Sec. 106.46(e)(3) to reflect that the requirements of other
antidiscrimination laws may result in only one party being permitted to
have a support person.
---------------------------------------------------------------------------
\61\ See 20 U.S.C. 1221(d) (``Nothing in this chapter 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. 790 et seq.], the Age
Discrimination Act [42 U.S.C. 6101 et seq.], or other statutes
prohibiting discrimination, to any applicable program.'').
---------------------------------------------------------------------------
In response to concerns about the potential exclusion of parents
from disciplinary proceedings at postsecondary institutions, the
Department reiterates that Sec. 106.6(g) prohibits the Title IX
regulations from being read in derogation of any legal right of a
parent, guardian, or other authorized legal representative to act on
behalf of a party, and that nothing in the regulations prohibits a
student from choosing a parent as their advisor. As noted in the
discussion of Sec. 106.6(g) in this preamble, a parent or guardian
would not automatically be eligible to attend a proceeding with a
postsecondary student; because postsecondary students generally are
older than elementary school and secondary school students, parents and
guardians typically do not have the same legal authority to exercise
rights on behalf of postsecondary students. Section 106.46(e)(3) gives
a postsecondary institution the discretion to permit parties to have
persons other than the party's advisor--such as the party's parent or
guardian--attend any meeting or proceeding; however, a recipient must
not permit a parent or guardian of a postsecondary student to attend a
meeting or proceeding when their presence would violate FERPA.
The Department acknowledges the benefits of a support person (other
than an advisor). The Department also acknowledges the privacy
concerns, potential chilling effect, and possible scheduling challenges
associated with the presence of additional individuals. The Department
continues to believe that postsecondary students are more likely to be
independent and that their parents are less likely to be able to
exercise legal rights on their behalf. The Department maintains the
position, as stated in the preamble to the 2020 amendments, that the
sensitivity and high stakes of the sex-based harassment grievance
procedures weigh in favor of protecting the parties' privacy to the
extent feasible (unless otherwise required by law). Thus, the
Department declines to require postsecondary institutions to allow
parties to be accompanied to a meeting or proceeding by persons other
than the parties' advisors or those whose presence is legally required,
as described above. See 85 FR 30339. The Department also declines to
extend Sec. 106.46(e)(3) to complaints under Sec. 106.45 for similar
reasons to the decision not to extend Sec. 106.46(e)(2)'s right to an
advisor of choice to complaints under Sec. 106.45. As explained in
greater detail in the discussion of Sec. 106.46(e)(2), in general,
postsecondary students are differently situated from other parties to
grievance procedures, and postsecondary students who are participating
in grievance procedures for sex-based harassment complaints are
differently situated from those participating in grievance procedures
for non-sex-based harassment complaints. The Department also notes that
in proceedings involving 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
same opportunity to have others present at any disciplinary proceeding.
See 34 CFR 668.46(k)(2)(iii).
It is not necessary to modify Sec. 106.46(e)(3) to specify a limit
on the number of persons who may accompany a party to a meeting or
proceeding or to require attendees to sign a confidentiality agreement.
As noted above, Sec. 106.46(e)(3) must be interpreted consistent with
a postsecondary institution's obligations under FERPA so an institution
may not permit the presence of a person other than the party's advisor
when the presence of that person would violate FERPA. In addition,
Sec. 106.45(b)(5) already requires a recipient to take reasonable
steps to protect the privacy of the parties and witnesses during the
pendency of a recipient's grievance procedures, and reasonable steps
could include a confidentiality agreement if a recipient concludes such
an agreement would be appropriate.
Changes: None.
7. Section 106.46(e)(4) Expert Witnesses
Comments: Commenters offered a variety of views on Sec.
106.46(e)(4). One commenter supported the provision for giving
postsecondary institutions the discretion to decide whether to allow
expert witnesses, while another commenter urged the Department to
prohibit expert witnesses and instead ensure decisionmakers are trained
on topics on which expert witnesses might often provide testimony. The
commenter identified drug and alcohol incapacitation as areas in which
expert witnesses might provide testimony. Some commenters stated that
expert witnesses cannot provide case-specific information, are not
usually used in educational adjudications, and would unfairly tip the
scales in favor of parties who can afford them.
Several commenters opposed Sec. 106.46(e)(4) for eliminating the
requirement in the 2020 amendments that a recipient allow all parties
to present expert testimony. Commenters also criticized Sec.
106.46(e)(4) for, they asserted, limiting the scope of relevant
evidence, restricting a student's right to present claims or defenses
using evidence of their choice, and eroding protections grounded in
fairness principles and case law. Commenters stated that depriving
parties of their own expert witnesses could lead to errors or unfair
outcomes.
Some commenters disagreed with the Department's statement in the
July 2022 NPRM that postsecondary institutions are in the best position
to decide whether expert testimony will be helpful.
One commenter expressed concern that the Department appeared to
discourage expert witnesses in the July 2022 NPRM. Another commenter
criticized Sec. 106.46(e)(4) for failing to specify when expert
witnesses would be necessary or helpful. The commenter also asserted
that Sec. 106.46(e)(4) could harm complainants because complainants
sometimes rely on experts and because unfair institutional processes
can give rise to litigation and reversals, which drag out cases and
deny closure. Some commenters requested that Sec. 106.46(e)(4) be
extended to provide a recipient the discretion to permit character
witnesses.
Discussion: The Department appreciates the range of views expressed
by commenters, including concerns about both allowing and excluding
expert testimony. Although the 2020 amendments require a recipient to
provide an equal opportunity for the parties to present fact and expert
witnesses, we maintain our position expressed in the July 2022 NPRM,
see 87 FR 41497, that the Department is neither encouraging nor
discouraging the use of expert witnesses in an investigation of a sex-
based harassment
[[Page 33724]]
complaint involving a student at a postsecondary institution. The
Department agrees with the views expressed by commenters that expert
witnesses may, in certain cases, unnecessarily prolong the grievance
procedures and are not an essential component in all administrative
proceedings. Further, because expert witnesses would not have observed
the alleged conduct, their testimony may not be necessary or helpful to
the institution in determining whether sex-based harassment occurred.
See 87 FR 41497.
The Department, however, acknowledges that there may be specific
circumstances in which an institution believes expert witnesses could
provide helpful information. The Department declines to identify
instances in which expert witnesses will be necessary or helpful
because this decision should take into account the facts and
circumstances of a particular complaint and be left to the discretion
of the institution. Institutions are in the best position to identify
whether a particular case might benefit from expert witnesses and to
balance the interests of promptness, fairness to the parties, and
accuracy of adjudications in each case. Parties may explain to the
institution why they believe that expert testimony will be helpful in
their case. The Department disagrees that giving institutions the
discretion to decide whether to permit experts will prolong the
grievance procedures by rendering the procedures unfair. A
postsecondary institution must exercise its discretion regarding expert
witnesses in a manner that complies with these Title IX regulations,
including the obligations to objectively evaluate the relevant and not
otherwise impermissible evidence, treat the parties equitably, and use
investigators and decisionmakers who are free from bias or conflicts of
interest. The Department emphasizes that parties continue to have an
equal opportunity to present fact witnesses and other inculpatory and
exculpatory evidence that are relevant and not otherwise impermissible
under Sec. 106.45(f)(2), and parties also have the opportunity under
Sec. 106.46(i)(1) to appeal from a determination whether sex-based
harassment occurred on several bases, including on the basis that the
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.
The Department understands the concern expressed by some commenters
that expert witnesses confer an advantage on the parties who can afford
them. The Department again emphasizes that the financial resources of
any party must not affect a recipient's compliance with Sec. Sec.
106.45 and 106.46, including the obligations to objectively evaluate
the relevant and not otherwise impermissible evidence, treat
complainants and respondents equitably, and use investigators and
decisionmakers who are free from bias or conflicts of interest.
In response to a commenter's request to prohibit expert witnesses
altogether and to instead ensure that decisionmakers are adequately
trained on certain topics that might be raised by the parties during
the grievance procedures, the Department has determined that Sec.
106.8(d) in these final regulations strikes the appropriate balance
between requiring training on topics that are necessary to promote a
recipient's compliance with these regulations--such as the scope of
prohibited sex discrimination, the meaning of relevance, and the
requirements of the recipient's grievance procedures--while leaving
flexibility to recipients to choose the content and substance of any
additional training topics.
In response to the commenters' request to give a recipient
discretion to allow character witnesses, the Department notes that the
parties have an equal opportunity to present relevant and not otherwise
impermissible evidence (Sec. 106.45(f)(2)), and that recipients must
objectively evaluate relevant and not otherwise impermissible evidence
(Sec. 106.45(b)(6)). Section 106.45(f)(2) permits character evidence,
including character witnesses, that present relevant and not otherwise
impermissible evidence. The requirement that evidence be ``relevant,''
as defined by Sec. 106.2, means that a party's ability to present
character evidence (and a recipient's ability to consider such
evidence) is limited to evidence that will aid the decisionmaker in
determining whether the alleged sex discrimination occurred. Whether a
character witness is relevant will depend on the facts and
circumstances of a particular complaint.
Changes: None.
8. Section 106.46(e)(5) Timeframes
Comments related to both timeframe provisions, Sec. Sec.
106.45(b)(4) and 106.46(e)(5), are discussed together in the discussion
of Sec. 106.45(b)(4) in this preamble.
9. Section 106.46(e)(6) Access to Relevant and Not Otherwise
Impermissible Evidence
Sec. 106.46(e)(6)(i): Access to a Written Investigative Report or to
the Relevant and Not Otherwise Impermissible Evidence
Comments: Many commenters expressed support for Sec. 106.46(e)(6)
for ensuring that parties are able to access relevant evidence while
also protecting privacy by excluding impermissible evidence and
requiring steps to prevent unauthorized disclosures. Several commenters
expressed support for the additional flexibility for postsecondary
institutions to determine the manner for sharing information with the
parties.
Some commenters specifically supported the shift from ``directly
related'' in Sec. 106.45(b)(5)(vi) of the 2020 amendments to
``relevant'' in proposed Sec. 106.46(e)(6)(i), while other commenters
expressed concern or confusion about the use of ``relevant.'' Some
commenters were concerned that a recipient would have too much
discretion in determining relevance, and that parties would not have
the opportunity to explain why certain evidence is relevant because
they would not know what evidence was excluded. Some commenters urged
the Department to retain Sec. 106.45(b)(5)(vi) of the 2020 amendments.
Some commenters urged the Department to require a recipient to
provide access to both the relevant evidence and to an investigative
report, as required by the 2020 amendments at Sec. 106.45(b)(5)(vi)-
(vii). One commenter noted that it is standard practice for
postsecondary institutions to create investigative reports for civil
rights investigations, and that postsecondary institutions have become
accustomed to creating written investigative reports both prior to and
in response to the 2020 amendments. Other commenters criticized Sec.
106.46(e)(6)(i) for purportedly providing flexibility and reducing the
burden to postsecondary institutions while actually imposing the same
burdens as the 2020 amendments.
Some commenters said that limiting access to witness testimony
would hinder a respondent's ability to file a lawsuit to protect their
civil rights, though the commenters did not explain the basis for their
concern. One commenter objected to the exclusion of ``otherwise
impermissible evidence'' from the evidence shared with respondents.
Several commenters expressed concern that the underlying evidence
would, in some instances, only be available upon request. Some
[[Page 33725]]
commenters expressed concern that an investigative report would not
include all important information or would reflect the investigator's
bias. Other commenters noted that the risk of unfairness is increased
if the investigator creating the investigative summary is also the
ultimate decisionmaker. Some commenters recommended that the parties
have the opportunity to respond to draft investigative reports or
provide input on the evidence to be included in the investigative
report.
Other commenters asked the Department to modify Sec.
106.46(e)(6)(i) to align with the Clery Act.
Some commenters recommended that Sec. 106.46(e)(6)(i) require
(rather than only permit) institutions to provide the parties with an
organized, synthesized investigative report to help the parties
understand and therefore respond appropriately to the evidence. One
commenter suggested that Sec. 106.46(e)(6) require documentary
evidence to be attached to the investigative report, and the commenter
stated that the regulations do not explain how investigators should
share oral evidence (e.g., a recording or transcript of investigative
interviews) with the parties.
Discussion: Section 106.46(e)(6)(i) requires a postsecondary
institution to provide an equal opportunity to access the relevant and
not otherwise impermissible evidence by providing access to this
evidence (``evidence option''), or by providing access to the same
written investigative report that accurately summarizes this evidence
(``investigative report option''). If the postsecondary institution
initially chooses the investigative report option and then a party
requests access to the evidence, the institution is required to provide
all parties with an equal opportunity to access the underlying relevant
and not otherwise impermissible evidence. Section 106.46(e)(6) requires
an institution to provide the parties and their advisors with access to
the underlying evidence or the investigative report, but does not
require an institution to give the parties or their advisors a physical
or electronic copy of these materials.
The 2020 amendments distinguish between evidence that is ``directly
related'' to the allegations, to which the recipient must provide the
parties with access (Sec. 106.45(b)(5)(vi)), 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 preamble to the 2020
amendments explained that the universe of evidence ``directly related''
to a complaint may sometimes be larger than the universe of evidence
``relevant'' to a complaint. 85 FR 30304.
OCR received feedback during the June 2021 Title IX Public Hearing
that the distinction between ``directly related'' and ``relevant'' is
confusing and not well-delineated. In the July 2022 NPRM, the
Department proposed merging these standards by defining ``relevant'' in
Sec. 106.2 as evidence ``related to the allegations of sex
discrimination'' and ``evidence that may aid a decisionmaker in
determining whether the alleged sex discrimination occurred.'' 87 FR
41419. Despite the change in terminology from ``directly related'' to
``relevant'' to describe the scope of evidence to which the parties
must receive access, the Department views these final regulations as
requiring access to a similar scope of evidence as the 2020 amendments
with one exception.
Specifically, the 2020 amendments contemplate that evidence
regarding a complainant's sexual predisposition or prior sexual
behavior may be ``directly related'' to an allegation, but that such
evidence is not ``relevant'' unless the evidence is offered to prove
that someone other than the respondent committed the conduct alleged or
the evidence concerns specific incidents of the complainant's prior
sexual behavior with respect to the respondent and the evidence is
offered to prove consent. 85 FR 30428; see also 34 CFR 106.45(b)(6)(i),
(ii).\62\ Thus, the 2020 amendments give parties the right to inspect
and review all evidence regarding a complainant's sexual predisposition
or prior sexual behavior that is ``directly related'' to the
allegations, even though only evidence that falls into one of the two
exceptions is deemed ``relevant'' and can be used in the investigative
report and at the hearing. See 85 FR 30304, 30428; 34 CFR
106.45(b)(6)(i), (ii). The Department no longer agrees with this
approach and maintains it is inappropriate to broadly allow parties to
review evidence regarding a complainant's sexual interests or prior
sexual conduct. Thus, these final regulations do not permit the parties
to have any access to evidence relating to the complainant's sexual
interests or prior sexual conduct unless evidence about the
complainant's prior sexual conduct falls within one of the two narrow
circumstances in Sec. 106.45(b)(7)(iii) in that it (1) is offered to
prove that someone other than the respondent committed the alleged
conduct or (2) is evidence about the specific incidents of the
complainant's prior sexual conduct with the respondent and is offered
to prove consent to the alleged sex-based harassment.
---------------------------------------------------------------------------
\62\ As noted above in the discussion of Sec.
106.45(b)(7)(iii), the Department views the term ``sexual
interests'' as more appropriate than the term ``sexual
predisposition,'' which the Department views as an outdated phrase
that may conjure the type of assumptions that the Department seeks
to prohibit. The Department uses the term ``sexual predisposition''
in this discussion of Sec. 106.46(e)(6) only in the context of
referencing the requirements under the 2020 amendments.
---------------------------------------------------------------------------
The Department disagrees that the relevance standard gives too much
discretion to recipients. The 2020 amendments use a relevance standard
in various provisions without defining the term, except for the
clarifications in the preamble to the 2020 amendments that ``relevant''
should be interpreted using its plain and ordinary meaning and that
laypeople can make relevance determinations based on logic and common
sense. See 85 FR 30304, 30320. Adding a definition of ``relevant'' in
Sec. 106.2 of these final regulations appropriately limits the
discretion that recipients may exercise in determining the relevance of
evidence. The Department appreciates the opportunity to clarify that a
decisionmaker cannot rely on evidence to which the parties were not
given access. Under Sec. 106.46(e)(6), the parties must have an equal
opportunity to access evidence that is relevant to the allegations and
not otherwise impermissible, and under Sec. 106.46(h)(1)(iii), the
written determination whether sex-based harassment occurred must
include the decisionmaker's evaluation of the relevant and not
otherwise impermissible evidence. The scope of evidence that the
decisionmaker must evaluate and that the parties must have an equal
opportunity to access are coextensive.
Postsecondary institutions have discretion under Sec.
106.46(e)(6)(i) to decide whether to provide the parties with access to
the relevant and not otherwise impermissible evidence by providing
access to the actual relevant and not otherwise impermissible evidence
or by providing access to a written investigative report that
accurately summarizes the relevant and not otherwise impermissible
evidence. If a postsecondary institution provides access to an
investigative report, it must then provide access to the underlying
evidence if requested by one or more parties. As the Department noted
in the July 2022 NPRM, see 87 FR 41500, institutions vary greatly in
terms of size, resources, and expertise, and complaints of sex-based
harassment also
[[Page 33726]]
vary greatly in terms of the nature of the conduct alleged, the volume
and format of the evidence, and in other ways. Although an institution
has the discretion to decide whether to provide access to the
underlying evidence or the investigative report (subject to the
requirement to provide access to the underlying evidence if requested
by a party), the institution must articulate in its written grievance
procedures under Sec. 106.45(a)(1) consistent principles for
determining whether and when it will initially provide access to the
underlying evidence or an investigative report. The Department has
added Sec. 106.45(b)(8) to the final regulations to clarify that a
recipient's grievance procedures must articulate consistent principles
for how the recipient will determine which procedures apply when a
recipient chooses to adopt grievance procedures that apply to the
resolution of some, but not all, complaints.
The Department understands that some commenters would like the
Department to continue to require recipients to provide the parties
with access to both an investigative report and the underlying
evidence. Although there may be different benefits for the parties
associated with an investigative report or with the evidence itself,
the Department continues to believe that either option under Sec.
106.46(e)(6) enables the parties to access the evidence that is
relevant to the allegations of sex-based harassment. Either option
enables the parties to meaningfully prepare arguments, contest the
relevance of evidence, and present additional evidence for
consideration. Requiring an institution to provide access to the same
universe of evidence in two different formats at the outset is not
necessary for ensuring equitable and effective grievance procedures and
may increase costs, burdens, and delays without providing offsetting
benefits to the parties. The Department accordingly declines to require
a postsecondary institution to provide the parties with access to an
investigative report in cases in which the institution gives the
parties access to the underlying evidence. In response to comments
noting that institutions may ultimately provide access to the evidence
in both formats, which will not reduce the burden, the Department notes
that an institution may wish to consider the likelihood that a party
will request access to the underlying evidence or the preference to
create an investigative report to assist the decisionmaker in deciding
how to exercise a recipient's discretion under Sec. 106.46(e)(6)(i).
An institution is permitted to decide how to provide access to the
evidence on a case-by-case basis in accordance with the consistent
principles set forth in the institution's grievance procedures.
Nothing in these regulations prohibits postsecondary institutions
from providing the parties with access to the underlying evidence
instead of or in addition to access to an investigative report. As
noted above, there may be different benefits for the parties associated
with providing access to a synthesized investigative report and access
to the underlying evidence, and institutions are permitted to provide
the parties and their advisors with access to both an investigative
report and the underlying evidence.
These regulations do not prescribe a particular manner for sharing
oral evidence, nor do these regulations require institutions to attach
documentary evidence to the investigative report. Beyond the
requirement to provide an equal opportunity to access the relevant and
not otherwise impermissible evidence, Sec. 106.46(e)(6) does not
impose specific requirements on the manner of providing access to the
investigative report or the underlying evidence to the parties. See 87
FR 41500. As noted above, Sec. 106.46(e)(6) does not require an
institution to give the parties a physical or electronic copy of the
evidence or the investigative report. These final regulations, however,
require the institution to provide the parties with an audio or
audiovisual recording or transcript of the questioning of parties and
witnesses as part of the process for assessing credibility under Sec.
106.46(f)(1)(i)(C) (if the institution holds individual meetings
instead of a live hearing) and Sec. 106.46(g) (if the institution
holds a live hearing). To avoid the impression that an institution must
provide a copy of the investigative report, the Department has revised
Sec. 106.46(e)(6)(i) to replace the phrase ``[i]f the postsecondary
institution provides an investigative report'' with the phrase ``[i]f
the postsecondary institution provides access to an investigative
report.''
Unlike Sec. 106.45(f)(4), which permits a recipient to provide
access to an accurate description of the evidence to the parties that
may be oral, Sec. 106.46(e)(6)(i) requires a postsecondary institution
that chooses the investigative report option to provide access to a
written investigative report. As noted by a commenter, postsecondary
institutions are accustomed to creating written investigative reports.
The Department views written investigative reports as the more
appropriate alternative to providing the underlying evidence for
complaints governed by Sec. 106.46, which are more likely than
complaints governed only by Sec. 106.45 to involve complex
investigations with voluminous evidence, more interviews, participation
of advisors, and possible involvement of expert witnesses.
Under the investigative report option, the postsecondary
institution must provide an equal opportunity to access the underlying
relevant and not otherwise impermissible evidence to all parties if one
party makes such a request. In response to concerns about the risk of
incomplete or biased investigative reports, the Department notes that
an institution violates Sec. 106.46(e)(6)(i) by providing parties with
access to an investigative report that fails to accurately summarize
the relevant and not otherwise impermissible evidence.\63\ Further, the
parties retain the right to access the underlying evidence by
requesting such access. No party will be denied access to the
underlying evidence, even if the institution chooses to provide the
parties with access to an investigative report, because Sec.
106.46(e)(6)(i) allows either party to request that the parties have
access to the underlying evidence. The Department disagrees that the
investigative report option will give an advantage to the parties whose
advisors are familiar with the Title IX process and know how to request
the underlying evidence. As noted in the following section of the
preamble, an institution cannot choose to initially provide access to
the evidence to one party and access to an investigative report to the
other party or parties. In addition, the Department has revised Sec.
106.46(c)(2)(iii) to specifically require postsecondary institutions to
inform parties that they are entitled to an equal opportunity to access
the relevant and not otherwise impermissible evidence or an
investigative report, and, if the institution provides access to an
investigative report, that they are entitled to an equal opportunity to
access the relevant and not otherwise impermissible evidence upon the
request of any party. The final regulations thus put parties on notice
of this right.
---------------------------------------------------------------------------
\63\ For a discussion of the Department's authority to enforce
compliance with Title IX, see the discussion of OCR Enforcement
(Section VII).
---------------------------------------------------------------------------
The Department disagrees that Sec. 106.46(e)(6)(i) is contrary to
due process, fairness, or transparency. The Department also disagrees
that Sec. 106.46(e)(6)(i) limits a respondent's
[[Page 33727]]
ability to file a lawsuit to protect their civil rights. While some
commenters cited cases involving the importance of access to the
evidence, Sec. 106.46(e)(6)(i) is consistent with such case law
because Sec. 106.46(e)(6)(i) requires a postsecondary institution to
provide access to the relevant and not otherwise impermissible
evidence. In all cases under Sec. 106.46, the parties retain the right
to access the underlying relevant and not otherwise impermissible
evidence (see 87 FR 41500), which is the same scope of evidence on
which the decisionmaker can rely in reaching their determination
whether sex-based harassment occurred.
In response to concerns regarding bias by the investigator or
decisionmaker, the Department notes that Sec. 106.45(b)(2) requires
that any person designated as an investigator or decisionmaker not have
a conflict of interest or bias, and bias is one of the grounds for
appeal under Sec. 106.46(i)(1)(iii). The Department also notes that
compliance with the investigative report option of Sec.
106.46(e)(6)(i) requires the investigative report to provide an
accurate summary of the evidence.
The Department declines to include a provision permitting the
parties the opportunity to respond to or comment upon draft
investigative reports because the time needed to review and respond to
the draft report will unnecessarily prolong the grievance procedures
and impede a prompt resolution to the case. The Department emphasizes
that the parties have an opportunity to review and respond to the
investigative report under Sec. 106.46(e)(6)(ii), as discussed below.
The Department notes that the parties have the opportunity to provide
input on the evidence to be included in the investigative report
through their right to present witnesses and other evidence in
connection with the investigation (Sec. 106.45(f)(2)).
In response to the request to modify Sec. 106.46(e)(6)(i) to track
the Clery Act, the Department notes that there is no conflict between
Sec. 106.46(e)(6)(i) and the Clery Act regulations at 34 CFR
668.46(k)(3)(i)(B)(3), which requires an institution to ``provide[ ]
timely and equal access to the accuser, the accused, and appropriate
officials to any information that will be used during informal and
formal disciplinary meetings and hearings.'' Recipients that are
subject to these final Title IX regulations are able to comply with
these final Title IX regulations as well as the Department's
regulations implementing the Clery Act, including 34 CFR
668.46(k)(3)(i)(B)(3). These final Title IX regulations do not change,
affect, or alter any rights, obligations, or responsibilities under the
Clery Act.
In response to comments that a detailed investigative report would
help individuals with cognitive disabilities, the Department notes that
Section 504 and the ADA prohibit discrimination against individuals
with disabilities, and relatedly Sec. 106.8(e) states that 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.
Changes: The Department has revised Sec. 106.46(e)(6)(i) to
replace the phrase ``[i]f the postsecondary institution provides an
investigative report'' with the phrase ``[i]f the postsecondary
institution provides access to an investigative report.'' As discussed
below, the Department has revised Sec. 106.46(e)(6) and Sec.
106.46(e)(6)(i) to refer to ``an equal opportunity to access'' the
evidence rather than ``equitable access'' to the evidence.
Sec. 106.46(e)(6)(i): Equal Opportunity To Access Evidence
Comments: Some commenters supported the use of the term ``equitable
access'' in proposed Sec. 106.46(e)(6)(i) and emphasized that the
Department should clarify what the term means and how it applies.
Multiple commenters expressed concern that the phrase ``equitable
access'' in proposed Sec. 106.46(e)(6)(i) is more open to
interpretation than the phrase ``equal opportunity'' in Sec.
106.45(b)(5)(vi) of the 2020 amendments. One commenter asked the
Department to require recipients to provide the parties with equal,
reasonable, and continuous access to the evidence, while another
commenter expressed concern that institutions could interpret
``equitable'' as permitting access to the evidence in an equal but
inadequate manner. One commenter suggested modifying proposed Sec.
106.46(e)(6)(i) to clarify that ``equitable access'' refers to the
manner and mode of delivery of the evidence, not the scope of the
evidence that is accessible. Other commenters expressed concern that
proposed Sec. 106.46(e)(6) provides too much discretion to the Title
IX Coordinator and the recipient to exclude evidence if it is
``equitable'' to do so. Some commenters recommended that the Department
adopt the language from the Clery Act of providing ``timely and equal
access'' to the evidence ``to the accuser, accused, and appropriate
officials'' rather than the ``equitable access'' language of proposed
Sec. 106.46(e)(6)(i).
Discussion: In response to comments about the meaning of
``equitable'' and how it differs from ``equal'' as used in the 2020
amendments, other parts of the proposed regulations, and the Clery Act,
the Department has revised Sec. 106.46(e)(6) to require a
postsecondary institution to provide an ``equal opportunity'' to access
the relevant and not otherwise impermissible evidence. The Department
emphasizes that this change from ``equitable'' in proposed Sec.
106.46(e)(6) to ``equal opportunity'' in Sec. 106.46(e)(6) of these
final regulations does not substantively change the institution's
obligations or the parties' rights related to access to the evidence.
Under Sec. 106.46(e)(6), an equal opportunity to review the evidence
requires a postsecondary institution to provide all parties with access
to the same written investigative report or to provide them with access
to the underlying evidence--the institution cannot choose to provide
access to the evidence to one party and access to an investigative
report to the other party or parties, nor can the institution choose to
provide different versions of an investigative report to each party. A
postsecondary institution has the discretion to determine the mode of
providing access to the investigative report or to the underlying
evidence, such as electronic copies, physical copies, or inspection of
the institution's copy; however, the institution must exercise this
discretion in a manner that ensures that the parties have an equal
opportunity to access the evidence. The requirement to provide an equal
opportunity to access the evidence means that the parties must have the
same opportunity to access the evidence, but it does not mean that an
institution must treat the parties in an identical manner regarding the
mode of accessing the evidence. A postsecondary institution may need to
provide a particular mode of access through auxiliary aids and services
to a party with a disability to ensure effective communication, which
would not be applicable to the other party. Similarly, for persons with
limited English proficiency, consistent with Title VI, a postsecondary
institution may need to provide language assistance services to only
one party. An institution must also recognize any extenuating
circumstances (e.g., one party is studying abroad) that affect a
party's ability to access the evidence in a particular manner. The
Department acknowledges that these final regulations use ``equitably''
in Sec. Sec. 106.44(f)(1)(i) and 106.45(b)(1). The preamble for Sec.
106.45(b)(1) explains the Department's reasoning for retaining
``equitably'' in those provisions.
[[Page 33728]]
Beyond the requirement to provide an equal opportunity to access
the relevant and not otherwise impermissible evidence, Sec.
106.46(e)(6) does not impose specific requirements on the manner of
providing access to the investigative report or the underlying evidence
to the parties. As the Department noted in the July 2022 NPRM, see 87
FR 41500, a postsecondary institution has the discretion to determine
how to provide this information, subject to Sec. 106.46(e)(6)(ii)'s
requirement that the parties and advisors have a meaningful opportunity
to review it and Sec. 106.46(e)(6)(iii)'s requirement that the
institution take reasonable steps to prevent its unauthorized
disclosure. Under Sec. 106.46(a), a postsecondary institution must
have written grievance procedures that incorporate the requirements of
Sec. Sec. 106.45 and 106.46, including Sec. 106.46(e)(6). Therefore,
an institution cannot decide ad hoc how to provide an equal opportunity
to access the evidence that is relevant and not otherwise
impermissible. To comply with Sec. 106.45(b)(8), an institution's
grievance procedures could explain that the recipient will consider the
roles of the parties, the nature of the conduct alleged, and the
severity of the potential sanctions. An institution is permitted to
decide how to provide access to the evidence on a case-by-case basis in
accordance with the consistent principles set forth in the
institution's grievance procedures.
The Department declines to modify Sec. 106.46(e)(6) to state that
institutions must provide the parties with reasonable and continuous
access to the evidence. Section 106.46(e)(6) sets forth detailed
requirements for the disclosure of evidence that will ensure access is
reasonable. Requiring continuous access to the evidence would be
unworkable and unduly burdensome and could significantly delay
resolution of the case. The Department notes that the parties must have
the opportunity to review the evidence prior to the determination (and
prior to the live hearing, if one is conducted).
The Department disagrees that Sec. 106.46(e)(6) provides too much
discretion to the Title IX Coordinator to exclude evidence or provide
access to evidence in an equal but inadequate manner because Sec.
106.46(e)(6)(ii) requires postsecondary institution to give the parties
a ``reasonable opportunity to review'' the relevant and not otherwise
impermissible evidence. The regulations make clear that an equal
opportunity to access the evidence refers to how the institution is
providing access to the evidence, rather than the scope of the
evidence, because Sec. 106.46(e)(6) refers to access to the ``relevant
and not otherwise impermissible evidence'' to describe the scope. In
addition, Sec. 106.45(b)(6) requires an objective evaluation of all
evidence that is relevant, consistent with the definition of
``relevant'' in Sec. 106.2, and not otherwise impermissible, including
both inculpatory and exculpatory evidence. The Department also declines
to modify Sec. 106.46(e)(6) to adopt the language in the Clery Act.
The Department interprets the evidentiary requirements in these final
regulations as consistent with those in the Clery Act.
Section 106.46(e)(6)(i), which specifies that the postsecondary
institution must provide each party and the party's advisor with an
equal opportunity to access 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), does not require a
party to be present for their advisor to access the evidence. However,
the Department declines to further revise the regulatory text because
Sec. 106.46(e)(6)(i) is sufficiently clear on this point.
Changes: The Department has revised Sec. Sec. 106.46(e)(6) and
(6)(i) to refer to ``an equal opportunity to access'' the evidence
rather than ``equitable access'' to the evidence. As noted above, the
Department has revised Sec. 106.46(e)(6)(i) to replace the phrase
``[i]f the postsecondary institution provides an investigative report''
with the phrase ``[i]f the postsecondary institution provides access to
an investigative report.''
Sec. 106.46(e)(6)(ii): Reasonable Opportunity To Review and Respond to
Evidence
Comments: Multiple commenters expressed support for the more
flexible approach in Sec. 106.46(e)(6)(ii) and the removal of the ten-
day timeframes and other procedural requirements from the 2020
amendments related to reviewing and responding to evidence before a
decision is rendered. Some commenters noted that this proposed approach
would expedite the adjudication process, which would benefit all
parties and enable investigations even when a party would soon be
graduating. Some commenters noted that the prior approach under the
2020 amendments at times conflicted with State laws and collective
bargaining agreements. One commenter asserted that investigations that
would previously take ten days now take up to three months under the
2020 amendments and proposed Sec. 106.46(e)(6)(ii) would remedy this
problem.
Other commenters expressed concern that the phrase ``reasonable
opportunity'' is vague, would undermine the predictability of the
timeframes, and would cause recipients to impose insufficient
timeframes to promptly resolve complaints, to the detriment of parties'
rights to fundamental fairness. Another commenter noted that because
reviewing evidence can re-traumatize a complainant, providing
insufficient time would be especially harmful. Some commenters
recommended that parties and their advisors should have access to
evidence ten days before any hearing and that requests to reschedule a
hearing be accommodated.
Some commenters expressed concern that allowing a respondent to
review the evidence against them and to respond to that evidence only
at a live hearing, and not in advance, would inhibit the respondent's
ability to prepare their response and the recipient's ability to
determine responsibility. One commenter expressed concern that Sec.
106.46(e)(6)(ii) provides too much discretion to a recipient to
determine whether respondents can respond to evidence in a live hearing
versus in another format.
Discussion: The Department maintains that a postsecondary
institution must provide parties with a reasonable opportunity to
review and respond to the evidence or the investigative report before
determining whether sex-based harassment has occurred. See 87 FR 41501.
Reasonableness is a well understood concept, and setting a
reasonableness standard in this context better supports prompt and
equitable grievance procedures, whereas specific timeframes do not
necessarily accomplish either objective because they may be
unreasonably long in some circumstances or unreasonably short in
others. In exercising their discretion to determine reasonableness,
postsecondary institutions must ensure that the parties are able to
meaningfully review and respond to the evidence or the investigative
report. The nature and volume of evidence varies greatly based on the
allegations in a complaint, and a reasonable timeframe accommodates
this variation. 87 FR 41501. 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. If a
postsecondary institution provides the parties with access to an
investigative report and then subsequently provides the parties
[[Page 33729]]
with access to the underlying evidence in response to a party's request
for the underlying evidence, the parties must have a reasonable
opportunity to review and respond to the underlying evidence as well.
It is the Department's view that preventing the parties from reviewing
and responding to the evidence to which the institution provided access
would not comply with Sec. 106.46(e)(6)(ii)'s requirement for a
reasonable opportunity to review and respond to the evidence.
A reasonable opportunity to review and respond also accommodates
particular circumstances that the parties may be facing that may
interfere with their ability to review and respond in a brief period.
The Department further notes that Sec. 106.46(e)(5) requires a
postsecondary institution to allow for the reasonable extension of
timeframes for good cause.
The Department appreciates the opportunity to clarify that Sec.
106.46(e)(6)(ii) requires a postsecondary institution to provide the
reasonable opportunity to review the evidence or the investigative
report before a hearing so that the parties are not inhibited in their
ability to prepare a response. At the same time, those institutions
have discretion to allow the party to respond before a hearing, during
a hearing, or both. Allowing institutions to choose the manner in which
the parties respond to the evidence or the investigative report enables
the institution to take into account the complexity of the evidence,
the likelihood that the parties will need additional time to formulate
a response, the resources of the institution, and other factors. The
Department also notes that, if an institution concludes that an
additional response from the parties would be helpful to address issues
raised at the hearing, the institution may allow the parties to submit
statements or otherwise respond to evidence after the conclusion of the
hearing. In this situation, the institution would need to allow the
other party or parties to have an opportunity to review and respond to
any additional evidence provided in a party's post-hearing submission.
Under Sec. 106.46(i), parties have the right to appeal from a
determination whether sex-based harassment occurred based on a
procedural irregularity that would change the outcome; new evidence
that would change the outcome and that was not reasonably available
when the determination was made; and conflict of interest or bias by
the Title IX Coordinator, investigator, or decisionmaker that would
change the outcome. Depending on the specific circumstances, a party
may be able to appeal an institution's failure to comply with Sec.
106.46(e)(6) under one or more of the appeal bases. In addition, anyone
who believes that a recipient has failed to comply with Title IX may
file a complaint with OCR, which OCR would evaluate and, if
appropriate, investigate and resolve consistent with these regulations.
For a discussion of the Department's authority to enforce compliance
with Title IX, see the discussion of OCR Enforcement (Section VII).
Changes: The Department has changed ``as provided under'' to
``described in'' for clarity. The Department has also added ``or the
investigative report'' to clarify that Sec. 106.46(e)(6)(ii) requires
a postsecondary institution to provide the parties with a reasonable
opportunity to review and respond under the evidence option or the
investigative report option.
Sec. 106.46(e)(6)(iii): Unauthorized Disclosures
Comments: Multiple commenters supported Sec. 106.46(e)(6)(iii) and
its protection against unauthorized disclosures and protection of
student privacy. Commenters asked for clarification of the phrases
``unauthorized disclosure'' and ``reasonable steps.'' One commenter
recommended moving Sec. 106.46(e)(6)(iii) to Sec. 106.45 because
privacy should concern all recipients, not just postsecondary
institutions. The commenter urged the Department to modify Sec.
106.46(e)(6)(iii) to require a recipient to penalize unauthorized
disclosures; however, the commenter also expressed concern that Sec.
106.46(e)(6)(iii) does not state how a party or their advisor can use
information obtained during the grievance procedures in a related legal
proceeding.
Some commenters expressed concerns that the prohibition on
unauthorized disclosures interferes with free speech rights, describing
it as a ``gag order'' or prior restraint that could only be consistent
with the First Amendment if it satisfied strict scrutiny. Some
commenters expressed concern that Sec. 106.46(e)(6)(iii) would prevent
students from seeking support of friends and family. Commenters also
expressed concern that Sec. 106.46(e)(6)(iii) would prevent students
and faculty from being able to publicly criticize their institution for
its handling of a complaint. Some commenters noted that Sec.
106.45(b)(5) contains exceptions permitting disclosure that Sec.
106.46(e)(6)(iii) does not, but that it would be difficult to revise
Sec. 106.46(e)(6)(iii) to include examples of authorized disclosure of
protected speech. Another commenter asked the Department to clarify
that, under Sec. 106.46(e)(6)(iii), journalists would not be
disciplined for reporting on Title IX proceedings or compelled to
reveal confidential sources.
Discussion: The Department agrees that unauthorized disclosures
should be addressed under all grievance procedures and has added an
analogous provision at Sec. 106.45(f)(4)(iii). Unauthorized disclosure
of sensitive information could compromise the fairness of grievance
procedures by deterring participation, impairing the reliability of
witness testimony, causing fear of retaliation, and other consequences.
See 87 FR 41501.
Postsecondary institutions must take reasonable steps to protect
against the parties' and their advisors' unauthorized disclosure of
evidence and information obtained solely through the sex-based
harassment grievance procedures. Parties and witnesses are less likely
to participate in the grievance procedures--or less likely to
participate fully and openly--if they fear that any relevant and not
impermissible information that is provided, including sensitive
information from their education records, can be widely shared with the
campus community or posted online. Section 106.46(e)(6)(iii) promotes
trust and participation in the equitable resolution of sex-based
harassment complaints by limiting the parties' and advisors' ability to
disclose information and evidence gained solely through the sex-based
harassment grievance procedures. The limitation on disclosing
information in Sec. 106.46(e)(6)(iii) is accordingly necessary to
``effectuate the provisions'' of Title IX, see 20 U.S.C. 1682, because
the limitation ensures that recipients have grievance procedures that
provide for an effective response to allegations of discrimination so
that recipients' education programs and activities can be free from
discrimination on the basis of sex, see 20 U.S.C. 1681.
Due to the sensitive nature of the evidence and information, the
Department anticipates that most disclosures by the parties or advisors
of evidence or information obtained solely through the sex-based
harassment grievance procedures will not be authorized. Section
106.45(b)(5) prohibits a recipient from taking any steps to protect
privacy that restrict the parties' ability to gather evidence; consult
with their family members, confidential resources, or advisors; or
otherwise prepare for or participate in the grievance procedures.
Accordingly, authorized disclosures for purposes of
[[Page 33730]]
Sec. 106.46(e)(6)(iii) include those disclosures that are permitted
under Sec. 106.45(b)(5). In addition, consistent with Sec.
106.46(e)(6)(iii), institutions may authorize narrow disclosures to
particular individuals or of particular pieces of evidence, depending
on the circumstances. The final regulations do not impose specific
requirements because this is an appropriate area for postsecondary
institutions to exercise discretion depending on the circumstances. To
prevent the unauthorized disclosure of this information, institutions
must ensure that parties and their advisors are aware of any types of
disclosures that are permissible (including disclosures that are
authorized by the institution, authorized by other laws, or consented
to by the parties), as well as the types of disclosures that parties
and their advisors are prohibited from making by the institution or
other laws. When exercising its discretion to authorize certain
disclosures, the institution must satisfy its obligation under Sec.
106.45(b)(5) to take reasonable steps to protect the privacy of the
parties and witnesses. Reasonable steps may include, but are not
limited to, policies that protect sensitive evidence and software that
restricts further distribution of evidence beyond those who need access
in the grievance procedure. A postsecondary institution that authorizes
the parties to make widespread disclosures of information obtained
solely through the grievance procedures would likely violate Sec.
106.45(b)(5) by failing to take reasonable steps to protect privacy.
Comments related to nondisclosure agreements are addressed in Sec.
106.45(b)(5).
Section 106.46(e)(6)(iii) is narrowly framed to address privacy
concerns related to information and evidence obtained solely through
the grievance procedures, including through the institution's sharing
of an investigative report or underlying evidence under Sec.
106.46(e)(6)(i), whereas Sec. 106.45(b)(5) more broadly requires a
recipient to take reasonable steps to protect the parties' and
witnesses' privacy during the pendency of a recipient's grievance
procedures. The Department recognizes that, depending on the particular
circumstances of the case, these two provisions may overlap in the
types of reasonable steps needed to comply with these provisions. The
Department does not view Sec. Sec. 106.45(b)(5) and 106.46(e)(6)(iii)
as conflicting. For example, in response to an inquiry about a party's
ability to seek the support of friends and family, the Department notes
that Sec. 106.45(b)(5) prohibits a recipient from taking steps to
protect privacy that restrict a party's ability to consult with family
members, and therefore disclosures to family members would be
authorized under Sec. 106.46(e)(6)(iii). Neither Sec. Sec.
106.45(b)(5) nor 106.46(e)(6)(iii) necessarily prohibits a party from
seeking support from friends. Section 106.46(e)(6)(iii), however, does
prohibit a party from disclosing information and evidence with friends
that the party obtained solely through the sex-based harassment
grievance procedures, unless the postsecondary institution has
appropriately exercised its discretion under Sec. 106.46(e)(6)(iii) to
expressly authorize such a disclosure, the institution complies with
its obligation under Sec. 106.45(b)(5) to take reasonable steps to
protect the privacy of the parties and witnesses, and the disclosure
does not violate any applicable laws.
Section 106.46(e)(6)(iii) requires institutions to address
unauthorized disclosures, which may include penalizing unauthorized
disclosures. The Department declines, however, to require institutions
to penalize unauthorized disclosures because the institution should
take into account the specific circumstances of the unauthorized
disclosure when determining how to respond.
The Department expects postsecondary institutions to implement this
provision consistent with the First Amendment and consistent with Sec.
106.6(d), and nothing in this provision prevents recipients from doing
so. The Department also notes that Sec. 106.46(e)(6)(iii) is limited
to information and evidence obtained solely through the sex-based
harassment grievance procedures; this provision does not limit
disclosures, including public criticism of the institution's handling
of a complaint, based on information learned through other means, such
as personal experience. Section 106.46(e)(6)(iii) requires a
postsecondary institution to prevent and address unauthorized
disclosures by parties and their advisors; Sec. 106.46(e)(6)(iii) does
not impose any restrictions on journalists.
The Department recognizes that parties may need to disclose
information obtained solely through the grievance procedures as part of
exercising their legal rights, including the right to file an OCR
complaint and the right to initiate (or defend against) a related legal
proceeding. The Department does not intend to limit the exercise of
these rights and does not view Sec. 106.46(e)(6)(iii) as prohibiting
parties from disclosing information obtained solely during the sex-
based harassment grievance procedures in related administrative or
judicial proceedings. The Department has revised Sec.
106.46(e)(6)(iii) to make clear that disclosures of such information
and evidence for purposes of administrative proceedings or litigation
related to the complaint of sex-based harassment are authorized.
Changes: The Department has added a sentence to Sec.
106.46(e)(6)(iii) to clarify that, for purposes of this paragraph,
disclosures of information and evidence for purposes of administrative
proceedings or litigation related to the complaint of sex-based
harassment are authorized. As previously discussed, the Department
agrees that unauthorized disclosures should be addressed under all
grievance procedures and has added a provision analogous to Sec.
106.46(e)(6)(iii) at Sec. 106.45(f)(4)(iii).
Sec. 106.46(e)(6) and FERPA
Comments: Several commenters sought confirmation that the proposed
regulations do not conflict with, or abridge, FERPA. Some commenters
requested clarification that disciplinary records are ``education
records'' under FERPA and of whether parties can access Title IX
evidentiary files in the event of litigation.
Discussion: The Department appreciates the opportunity to clarify
the interaction between FERPA and the Title IX regulatory provisions
that permit or require the recipient's disclosure of evidence. FERPA
and its implementing regulations define ``education records'' as, with
certain exceptions, records that are directly related to a student and
maintained by an educational agency or institution, or by a party
acting for the agency or institution.\64\ Under FERPA, a parent or
eligible student has the right to inspect and review education records
related to the student under certain circumstances.\65\ In the context
of disciplinary proceedings, the Department has historically
recognized, and the Sixth Circuit has affirmed, that student
disciplinary records are education records as defined in FERPA and that
such records may only be disclosed with the prior written consent of
the parent or eligible student or under one of the enumerated
exceptions to
[[Page 33731]]
FERPA's general consent requirement.\66\ These final Title IX
regulations, at Sec. 106.46(e)(6), require a postsecondary institution
to provide the parties with access to the evidence that is relevant to
the allegations of sex-based harassment and not otherwise
impermissible.
---------------------------------------------------------------------------
\64\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
\65\ 20 U.S.C. 1232g(a)(1); 34 CFR part 99, subpart B. FERPA's
implementing 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.
\66\ See 73 FR 74832-33; United States v. Miami Univ., 294 F.3d
797, 811-15 (6th Cir. 2002). The Department made the statement at 73
FR 74832-33 in response to concerns about impairing due process in
student discipline cases in its FERPA rulemaking.
---------------------------------------------------------------------------
The Department acknowledges that certain evidence that is relevant
to the allegations may not necessarily be directly related to all
parties for purposes of FERPA. To the extent that these Title IX
regulations require disclosure of information from education records to
the parties (or their parents, guardians, authorized legal
representatives, or advisors) that would not comply with FERPA, the
GEPA override applies--as well as the constitutional override in
certain circumstances--and requires disclosure of evidence under Sec.
106.46(e)(6) to the parties and their advisors.\67\
---------------------------------------------------------------------------
\67\ The constitutional override is explained in greater detail
in the discussion of Sec. 106.6(e).
---------------------------------------------------------------------------
Consistent with the approach in the 2020 amendments, see 85 FR
30306, the Department maintains the requirement for a postsecondary
institution to provide the parties and their advisors with an equal
opportunity to access the evidence, rather than providing access only
to the parties and permitting the parties to choose whether to share
with their advisors. It is sensible and efficient to provide access to
the evidence to the advisors, given that a party who exercises their
right to choose an advisor is making the decision to receive assistance
from that advisor during the grievance procedures. The Department notes
that, under FERPA, an eligible student can consent to the disclosure of
their own education records. To the extent that the relevant evidence
consists of education records that are not directly related to that
student, the student would be unable to consent to the disclosure of
that information. In such circumstances, however, a GEPA override of
FERPA would permit a postsecondary institution to share evidence with
the parties' advisors of choice, in the same manner that the
Constitutional override permits sharing evidence with the party. 20
U.S.C. 1221(d).
The Department reiterates that, under Sec. 106.46(e)(6)(iii), a
postsecondary institution must take reasonable steps to prevent and
address parties' and their advisors' unauthorized disclosures of
information and evidence obtained solely through the sex-based
harassment grievance procedures. These steps may include restrictions
on the parties' and advisors' use of the information and evidence,
including limitations on their ability to redisclose the information
and limitations on their ability to receive physical copies of the
information. FERPA does not limit an eligible student's use or
redisclosure of their own education records or personally identifiable
information contained therein. In addition, final Sec.
106.46(e)(6)(iii) expressly authorizes parties (and their advisors) to
disclose information and evidence obtained through the grievance
procedures for purposes of administrative proceedings or litigation
related to the complaint of sex-based harassment.
Changes: None.
10. Section 106.46(f) Evaluating Allegations and Assessing Credibility
Sec. 106.46(f)(1): Process for Questioning Parties and Witnesses
General Support and Opposition
Comments: A number of commenters supported the proposed removal of
the requirement for live hearings with advisor-conducted cross-
examination, noting that meetings during which the decisionmaker asks
questions can produce fair and accurate outcomes. Other commenters
opposed eliminating the requirement for live hearings with advisor-
conducted cross-examination because they were concerned about the risk
of bias and conflicts of interest. Some commenters generally stated men
were already outnumbered by women at postsecondary institutions, but
did not cite specific data or studies, and were concerned that removing
the requirement for live hearings with advisor-conducted cross-
examination would negatively impact men's access to education.
Discussion: The Department appreciates the variety of views
expressed regarding proposed Sec. 106.46(f). As explained in more
detail below, after carefully considering the views of the commenters,
the Department maintains the position that as part of the grievance
procedure requirements in Sec. 106.46, all postsecondary institutions
must be required to provide a live-questioning process that enables the
decisionmaker to assess the credibility of parties and witnesses if
credibility is in dispute and relevant to evaluating one or more
allegations of sex-based harassment. The live-questioning process must
be provided either through (1) individual meetings with the
investigator or decisionmaker, who will ask initial and follow-up
questions proposed by the parties, as well as the investigator's or
decisionmaker's own questions, if any, or (2) a live hearing with
questions, including questions proposed by the parties, asked by the
decisionmaker or the party's advisor. The Department has determined
that this approach is equitable and provides the parties with a
meaningful opportunity to be heard and respond to the allegations,
while appropriately taking into account the diversity of postsecondary
institutions in terms of size, type, administrative structure,
location, and educational community.
In response to commenters who were concerned about the risk of bias
if live hearings with advisor-conducted cross-examination were no
longer required, the Department notes that final Sec. 106.45(b)(2)
prohibits any Title IX Coordinator, investigator, or decisionmaker from
having a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent. In
addition, final Sec. 106.8(d)(2) requires all investigators,
decisionmakers, and other individuals responsible for implementing a
postsecondary institution's grievance procedures to be trained on how
to serve impartially, including by avoiding prejudgment of the facts at
issue, conflicts of interest, and bias. Section 106.46(f)(1) also
ensures that, no matter which live-questioning process is used, each
party has an opportunity to have their relevant and not otherwise
impermissible questions asked, either by an investigator or
decisionmaker or by their advisor. The investigator or decisionmaker
also must consider all relevant and not otherwise impermissible
evidence. See Sec. 106.45(b)(6) and(7), (f)(3), (h)(1)(iii). Many of
these requirements are consistent with the 2020 amendments.
Regarding commenter assertions that removing the requirement for
live hearings with advisor-conducted cross-examination would negatively
impact men's access to education, the Department notes that any person,
regardless of sex, may be a complainant or a respondent, and thus
permitting, but not requiring, a postsecondary institution to use live
hearings with questioning by an advisor does not discriminate based on
sex. In addition, the Title IX regulations at Sec. 106.31(a) and
(b)(4) require that a recipient carry out its grievance procedures in a
nondiscriminatory manner and prohibit a recipient from discriminating
against any party based on sex. Anyone, including a man, who believes
that they have been discriminated against based
[[Page 33732]]
on sex may file a complaint with OCR, which OCR would evaluate and if
appropriate investigate and resolve consistent with these regulations'
requirement that a recipient carry out its grievance procedures in a
nondiscriminatory manner.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Impact on Reporting
Comments: A number of commenters supported the proposed removal of
the requirement for live hearings with advisor-conducted cross-
examination because it chilled reporting of sex-based harassment. A
group of commenters challenged the notion that a decrease in complaints
was due solely to the live hearing with advisor-conducted cross-
examination requirement in the 2020 amendments, asserting that the
COVID-19 pandemic was also a factor. Other commenters stated that even
if the decrease in complaints was due to concerns regarding live
hearings with advisor-conducted cross-examination, this is not
necessarily a concern because this requirement discouraged the filing
of inaccurate or bad faith complaints.
Discussion: The Department agrees with commenters' assessment based
on their experiences that the requirement for live hearings with
advisor-conducted cross-examination may have chilled reporting of sex-
based harassment. The Department acknowledges that the stakeholders who
expressed this concern during the June 2021 Title IX Public Hearing,
and the commenters who shared this concern during the public comment
period, did not provide information definitively attributing the
decrease to just that factor, to the exclusion of others which could
have played a role, such as the COVID-19 pandemic. The Department
previously explained that this concern, as shared by stakeholders
during the June 2021 Title IX Public Hearing, was one of many factors
considered by the Department in connection with this issue. 87 FR
41505. The Department maintains that individuals decline to report sex-
based harassment for a variety of reasons and disagrees with the
proposition that declining to report sex-based harassment necessarily
means, as some commenters alleged, that additional complaints would
have been unfounded or made in bad faith.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Flexibility, Costs, and Burdens
Comments: Some commenters, including postsecondary institutions,
appreciated that permitting, but not requiring, live hearings with
questioning by an advisor would provide a postsecondary institution the
necessary flexibility to adjust its Title IX grievance procedures to
its campus environment and resources while still assessing credibility
in a live format. The commenters also stated that the requirement for
live hearings with advisor-conducted cross-examination in the 2020
amendments required them to expend resources that could have been used
for other things, including training for decisionmakers. Other
commenters noted that postsecondary institutions have already incurred
costs required to implement the requirement for live hearings with
advisor-conducted cross-examination in the 2020 amendments and argued
that there would be costs associated with eliminating this requirement.
A number of commenters supported giving postsecondary institutions
the flexibility to use live hearings with questioning by an advisor or
an alternative format for live questioning consistent with proposed
Sec. 106.46(f)(1). However, some other commenters were concerned that,
if given a choice, many postsecondary institutions, regardless of
resources, will opt for something other than a live hearing with
questioning by an advisor. In those cases, the commenters argued,
respondents' procedural protections would be subject to variations in
State law and institutional requirements. Some commenters requested
that the Department give postsecondary institutions additional
flexibility by providing general guidance as opposed to the
requirements in Sec. 106.46(f)(1).
Discussion: The Department recognizes that some commenters,
including postsecondary institutions that shared their experiences with
implementation, viewed the requirement for live hearings with advisor-
conducted cross-examination as burdensome and said it required them to
expend resources that could have been spent on other things, including
additional training for decisionmakers. The Department acknowledges
that postsecondary institutions have already incurred costs to comply
with the requirement for live hearings with advisor-conducted cross-
examination under the 2020 amendments. The Department notes, however,
that as some commenters shared, there are costs of maintaining the
requirement, including hiring and retaining adequate staff,
appropriately training any new staff, and paying for advisors if
volunteer advisors are not available or if a postsecondary institution
provides attorneys for parties without one when the other party is
represented. The Department also understands that there may be costs
associated with removing the requirement under the 2020 amendments for
live hearings with advisor-conducted cross-examination, including
potential costs of litigation and liability insurance as commenters
mentioned. Under the final regulations, a postsecondary institution has
the option to determine whether to use live hearings with questioning
by an advisor or some other form of live questioning. When making this
decision, each postsecondary institution may consider, among other
things, the costs associated with eliminating or maintaining a
requirement of a live hearing with advisor-conducted cross-examination,
although the Department notes that postsecondary institutions that
receive Federal financial assistance from the Department must comply
with these final regulations regardless of their resources. For a
detailed discussion of the costs and benefits of these final
regulations, see the Regulatory Impact Analysis section of this
preamble.
The Department acknowledges that once the final regulations go into
effect, some postsecondary institutions may choose to provide another
live-questioning process instead of a live hearing with questioning by
an advisor for some or all types of sex-based harassment complaints. As
explained in the section above on Due Process and Basic Fairness
Considerations Specific to Questioning by an Advisor or Decisionmaker,
the relevant case law does not obligate every postsecondary institution
to hold a live hearing with questioning by an advisor to effectuate
Title IX's nondiscrimination mandate. At the same time, nothing in the
final regulations precludes a postsecondary institution from complying
with applicable Federal or State case law or other sources of law
regarding live hearings with questioning by an advisor. For additional
discussion, see the section on Due Process and Basic Fairness
Considerations Specific to Questioning by an Advisor or Decisionmaker.
Title IX and these final regulations establish the procedures that the
Department has determined are necessary to fully effectuate Title IX's
nondiscrimination mandate, but States and institutions are free to
provide additional procedures as long as they do not conflict with
Title IX or these final regulations. The Department recognizes that
this may result in some lack of uniformity among States, but that is to
be expected when the Department, States, and institutions have
overlapping and sometimes different interests.
[[Page 33733]]
Although the Department maintains that requiring live hearings with
questioning by an advisor is not necessary to effectuate Title IX's
nondiscrimination mandate in all cases, as explained in the July 2022
NPRM, the Department recognizes the importance of a postsecondary
institution having procedures in place to assess credibility and to
provide a meaningful opportunity to be heard. See 87 FR 41503. The
Department has determined that it is consistent with Title IX for a
postsecondary institution to determine, based on consideration of its
administrative structure, resources, and applicable Federal, State, or
local law that a live hearing with questioning by an advisor is
appropriate, especially in light of the protections for the parties
built into the live hearing requirements in Sec. 106.46(g).
Regarding some commenters' requests for additional flexibility in
the form of general guidance as opposed to the requirements in Sec.
106.46(f)(1), the Department's view is that Sec. 106.46(f)(1)
appropriately balances the Department's goal to give postsecondary
institutions additional flexibility while providing adequate structure
and requirements to ensure that postsecondary institutions design
procedures to assess credibility that provide a meaningful opportunity
for the parties to respond.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Impact on the Parties
Comments: Some commenters viewed cross-examination as harmful and
re-traumatizing for complainants and shared personal stories about
undergoing cross-examination. Other commenters noted that the 2020
amendments permit the parties to participate in the live hearing from
separate locations upon request and do not permit the parties to
personally cross-examine each other. Some commenters shared personal
stories of how the lack of cross-examination impacted respondents.
Some commenters asserted that cross-examination is beneficial for
both parties because assessing credibility impacts both parties,
ensures both parties receive all of the rights to which they are
entitled, and produces reliable outcomes.
Discussion: The Department agrees that it is important to consider
the impact that live hearings with advisor-conducted cross-examination
has on the parties in addition to the impact they have on postsecondary
institutions. The Department acknowledges that some commenters viewed
cross-examination as harmful and re-traumatizing for complainants and
appreciates the personal stories commenters shared about undergoing
cross-examination. The Department recognizes other commenters noted
that the 2020 amendments addressed the potential harm of cross-
examination by permitting the parties to participate in the live
hearing from separate locations upon request and by not permitting the
parties to personally cross-examine each other. The Department also
appreciates the commenters who shared personal stories of how lack of
cross-examination impacted respondents. The Department acknowledges
commenters who viewed cross-examination as beneficial for both parties
because assessing credibility impacts both parties and commenters who
asserted that cross-examination equitably ensures both parties receive
all of the rights to which they are entitled and produces reliable
outcomes. The Department's view is that permitting, but not requiring,
postsecondary institutions to hold a live hearing with questioning by
an advisor appropriately balances the needs of both parties and enables
a postsecondary institution to take into consideration the impact that
questioning by an advisor may have on the parties, including potential
harms and benefits, when determining what procedures to use to assess
credibility.
The Department agrees with commenters that, to ensure all
participants have confidence in the process, Title IX requires
grievance procedures that treat the parties equitably and produce
reliable outcomes, but disagrees that requiring live hearings with
questioning by an advisor is the only way to accomplish these goals. As
explained in greater detail below, the Department has determined that
requiring live questioning with the opportunity for a party to propose
questions to be asked of the other party and witnesses, while giving
postsecondary institutions discretion as to the live questioning
format, ensures that postsecondary institutions can fully effectuate
Title IX's nondiscrimination mandate while providing the parties with a
meaningful opportunity to be heard and respond. The Department also
notes that, in addition to the live questioning requirement in Sec.
106.46(f)(1), the final regulations include a number of additional
procedural protections to ensure a fair process and reliable outcomes,
including, but not limited to, requiring that the parties be treated
equitably (Sec. 106.45(b)(1)); prohibiting a Title IX Coordinator,
investigator, or decisionmaker from having a conflict of interest or
bias for or against complainants or respondents generally or an
individual complainant or respondent (Sec. 106.45(b)(2)); requiring a
presumption that the respondent is not responsible for the alleged sex
discrimination until a determination is made at the conclusion of the
recipient's grievance procedures for complaints of sex discrimination
(Sec. 106.45(b)(3)); requiring an objective evaluation of all evidence
that is relevant and not otherwise impermissible (Sec. 106.45(b)(6));
requiring an equal opportunity to access either the relevant and not
otherwise impermissible evidence, or the same written investigative
report that accurately summarizes this evidence and requiring an equal
opportunity to access the relevant and not otherwise impermissible
evidence upon the request of either party if the postsecondary
institution provides access to an investigative report (Sec.
106.46(e)(6)(i)); and providing for appeal rights (Sec. 106.46(i)).
Changes: All changes to Sec. 106.46(f)(1) are described below.
Due Process and Fairness Considerations Generally
Comments: Some commenters generally asserted that the 2020
amendments improperly impose a requirement on all postsecondary
institutions that was created by a single court and that advisor-
conducted cross-examination is not required by Title IX, due process,
or fundamental fairness. On the other hand, a number of commenters
generally asserted that due process, fairness, and accuracy require
advisor-conducted cross-examination and urged the Department to
maintain the requirement from the 2020 amendments.
Discussion: The Department appreciates the variety of views
expressed by the commenters regarding whether due process and basic
fairness require live hearings with questioning by an advisor for all
complaints of sex-based harassment involving a student complainant or
student respondent at a postsecondary institution. The Department
reiterates that, as discussed in the preambles to the 2020 amendments
and the July 2022 NPRM, while the Supreme Court has not ruled on what
procedures satisfy due process under the U.S. Constitution in the
specific context of a Title IX sexual harassment grievance process held
by a postsecondary institution, and the Federal appellate courts that
have considered this particular issue in recent years have taken
different approaches, 85 FR 30327; 87 FR 41504,
[[Page 33734]]
these final regulations satisfy fundamental due process rights of
notice and opportunity to be heard, while balancing the parties'
interests, consistent with Supreme Court case law to date. The
Department has previously stated that what constitutes a meaningful
opportunity to be heard may depend on specific circumstances. 85 FR
30327; 87 FR 41504. And as the Department stated in the preamble to the
2020 amendments, and as is evident from the comments and discussed
further below, Federal and State courts are split on the specific issue
of whether due process or basic fairness requires live advisor-
conducted cross-examination in sex-based harassment complaints at the
postsecondary level. See 85 FR 30329.
As discussed further in the section above on Due Process and Basic
Fairness Considerations Specific to Live Questioning by an Advisor or
Decisionmaker, after carefully considering the comments and the case
law, the Department maintains the position from the July 2022 NPRM that
neither Title IX nor due process or basic fairness require
postsecondary institutions to hold a live hearing with questioning by
an advisor in all cases. See 87 FR 41505. The Department has determined
that the procedures in the final regulations at Sec. 106.46(f)(1),
which incorporate the revisions made in response to commenters'
concerns and suggestions, appropriately protect the rights of all
parties to have a meaningful opportunity to be heard and respond,
including the ability to probe the credibility of parties and
witnesses; and also protect the postsecondary institution's interest in
helping the decisionmaker seek the truth and make a reliable
determination, while minimizing any chilling effects on reporting of
sex-based harassment and on full participation of parties and witnesses
in the grievance procedures.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Mathews Balancing Test
Comments: One commenter was concerned that the Department
acknowledged a due process framework was relevant but did not conduct a
Mathews-type analysis to determine whether to revoke the live hearing
with advisor-conducted cross-examination requirement in the 2020
amendments. Other commenters noted that the interests at stake for
respondents are substantial and asserted that cross-examination may in
certain circumstances help ensure the outcome of a grievance proceeding
is accurate.
Discussion: In Mathews, the Supreme Court held that determining the
adequacy of pre-deprivation due process procedures involves a balancing
test that considers the private interest of the affected individual,
the risk of erroneous deprivation and benefit of additional procedures,
and the government's interest, including the burden and cost of
providing additional procedures. 424 U.S. at 335, 349. The Department
rejects one commenter's assertion that the Department did not conduct a
Mathews-type analysis, including considering the lasting impact of a
sex-based harassment accusation on a respondent, when determining
whether to remove the requirement for live hearings with advisor-
conducted cross-examination and that the Department only considered the
burdens expressed by unspecified stakeholders. As explained in the July
2022 NPRM, the Department considered the issue and reweighed the
factors after receiving feedback from a wide variety of stakeholders
regarding the implementation of the live hearing and advisor-conducted
cross-examination requirement in the 2020 amendments. See 87 FR 41505.
The Department notes that many of these stakeholders expressed their
views in live and written comments as part of the June 2021 Title IX
Public Hearing. A transcript of the hearing and corresponding written
comments received are publicly available, and the Department considered
the hearing and comments in proposing and adopting these final
regulations.\68\ Additional information regarding the stakeholders who
participated in the public hearing is available in the July 2022 NPRM.
See 87 FR 41395. For additional discussion of Mathews and the
Department's grievance procedure requirements, see the subsections on
the Department's methods for determining what process is due and
identifying relevant interests in Framework for Grievance Procedures
for Complaints of Sex Discrimination (Section II.C).
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\68\ The transcript and written comments are available at
https://www2.ed.gov/about/offices/list/ocr/public-hearing.html (last
visited Mar. 12, 2024).
---------------------------------------------------------------------------
As detailed in the discussion of proposed Sec. 106.46(f) in the
July 2022 NPRM, the Department considered a number of factors in
determining whether to maintain the requirement for live hearings with
advisor-conducted cross-examination, consistent with a Mathews-type
analysis. See 87 FR 41505-06. In addition to the impact on respondents,
these included the impact of the requirement on reporting of sex-based
harassment and parties' willingness to participate in Title IX
grievance procedures in light of a postsecondary institution's
obligations to operate its education program or activity free from sex
discrimination; the goal of ensuring that Title IX grievance procedures
are prompt and equitable and provide the parties, including the
respondent, with a meaningful opportunity to be heard and respond and
are designed to produce reliable outcomes; and the potential financial
and administrative burden that the requirement would place on
postsecondary institutions.
In light of these factors and after carefully considering the
comments received in response to the July 2022 NPRM, the Department
determined that the grievance procedure requirements in Sec. 106.46
will include a live-questioning process that enables the decisionmaker
to assess credibility of parties and witnesses to the extent
credibility is both in dispute and relevant to one or more allegations
of sex-based harassment. To provide postsecondary institutions with
necessary flexibility while protecting the interests of the parties and
ensuring reliable outcomes, the Department concluded that this live
questioning, including questions and follow-up questions proposed by
the parties, could occur in individual meetings with the investigator
or decisionmaker, or in a live hearing with questions asked by the
decisionmaker or the party's advisor.
The Department agrees with commenters who noted that the interests
at stake for respondents are substantial, and hence that the Department
must ensure that procedures to protect their interests are carefully
tailored. The Department's procedures accordingly allow for live
questioning, including questions proposed by respondents themselves but
asked by the decisionmaker or an advisor. The Department also agrees
with commenters who asserted that live questioning by an advisor may in
certain circumstances help ensure the outcome of a grievance proceeding
is accurate, as well as those commenters who, as noted above, expressed
concern or shared personal stories that live questioning by an advisor
can re-traumatize a complainant. Both of these concerns are relevant to
the second Mathews factor--the risk of erroneous deprivation and
benefit of additional procedures--because both testing credibility and
ensuring parties and witnesses are willing to participate in a
proceeding help ensure that a decisionmaker has access to reliable
information on which to base a decision. The Department maintains
[[Page 33735]]
that the form of live questioning permissible under Sec. 106.46(f)(i)
appropriately balances these concerns by reducing the likelihood of re-
traumatization while still allowing live questioning to occur. Finally,
the Department agrees with the comments from recipients stating that,
as noted above, resources now devoted to live, adversarial hearings can
be directed toward other methods of implementing Title IX's
nondiscrimination mandate and fairly adjudicating complaints, such as
by providing training for employees. The Department therefore maintains
that allowing recipients to eschew live, adversarial hearings if they
conclude doing so is in their best interests appropriately accounts for
the third Mathews factor, which is the government's interest, including
the burden and cost of providing additional procedures.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Procedural Requirements for School Disciplinary Proceedings
Comments: Some commenters stated that although courts agree that
due process requires some ability to meaningfully examine the
credibility of witnesses in Title IX grievance procedures, courts have
refused to require that a recipient permit the respondent or the
respondent's representative to conduct the questioning and instead only
require that a postsecondary institution have the opportunity to
observe the complainant respond to live questioning.
One commenter disagreed that the cases cited by the Department
supported the position that school disciplinary proceedings are not
civil or criminal trials and therefore the parties are not entitled to
the same rights. The commenter noted that the cases cited by the
Department did not address discipline for sex-based harassment and were
decided before Davis and OCR's subsequent interpretation that Davis
required postsecondary institutions to adjudicate student-to-student
sex-based harassment cases.
Some commenters argued that questioning of parties and witnesses
should occur at a live hearing because they are akin to trials in the
criminal justice system in which new information can be elicited. Some
commenters said that some courts have required due process in other
non-court settings that are analogous to Title IX grievance procedures.
Discussion: School disciplinary proceedings are not civil or
criminal trials and therefore, contrary to commenters' assertions,
disciplinary proceedings need not provide the same panoply of
procedural requirements afforded parties in a civil trial or defendants
in a criminal trial. As explained in the July 2022 NPRM and the
preamble to the 2020 amendments, see 87 FR 41457; 85 FR 30052, courts
have repeatedly made this point clear in cases analyzing what due
process requires in school discipline proceedings, including cases
decided post-Davis and involving allegations of sex-based harassment
\69\ and cases involving academic dishonesty \70\ or unsatisfactory
performance.\71\ One commenter expressed concern that some of these
cases did not involve Title IX; however, all of these cases provide
useful guidance on what due process requires in an academic setting.
Regardless of the fact that sex-based harassment grievance proceedings
are not civil or criminal trials, the Department adheres to its view
that basic principles of fairness require a live-questioning process
that enables the decisionmaker to adequately assess a party's or
witness's credibility to the extent credibility is both in dispute and
relevant to evaluating one or more allegations of sex-based harassment.
For additional discussion of this issue, see the section of this
preamble on Grievance Procedures Appearing as Quasi-Judicial
Proceedings.
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\69\ See, e.g., Univ. of Ark.-Fayetteville, 974 F.3d at 868
(``There also would be costs and burdens associated with imposing on
a university all of the formal procedural requirements of a common
law criminal trial.''); Haidak v. Univ. of Mass.-Amherst, 933 F.3d
56, 69 (1st Cir. 2019) (``We also take seriously the admonition that
student disciplinary proceedings need not mirror common law
trials.'').
\70\ See Nash, 812 F.2d at 664.
\71\ See Horowitz, 435 U.S. at 86.
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In response to commenters who said that questioning of parties and
witnesses should occur at a live hearing because live hearings are akin
to trials in the criminal justice system in which new information can
be elicited, the Department acknowledges that allegations of conduct
that constitute sex-based harassment under Title IX may overlap with
criminal offenses under State or other laws. Criminal trials and Title
IX, however, serve distinct purposes. The purpose of Title IX is to
address sex discrimination, including by ensuring that all students can
access a recipient's education program or activity free from sex
discrimination, while the purpose of the criminal justice system is to
discipline and punish criminal conduct; the potential infringement on a
person's liberty interest in the criminal context in the form of
incarceration is much greater even than the admittedly significant
consequence of a Title IX grievance procedure (e.g., suspension,
expulsion). In light of the different purposes served by Title IX and
the criminal justice system and the differences in infringement on a
person's liberty interest, it is appropriate for the final regulations
to include requirements or permit processes that may not be permissible
in the criminal justice system.
The Department agrees with commenters that consideration of due
process is also appropriate in non-court settings. As explained in more
detail in this section, the live questioning requirements in Sec.
106.46(f)(1) provide appropriate due process protections, including a
meaningful opportunity to respond, even though they do not require live
hearings with questioning by an advisor. The Department also notes that
recipients remain free to use live hearings, either with or without
questioning by an advisor, when they think it appropriate under the
circumstances or when they believe due process requires it, and
compliance with the minimum requirements of Title IX in the final
regulations does not relieve a recipient of any legal requirements it
might otherwise have.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Due Process and Basic Fairness Considerations Specific to Live
Questioning by an Advisor or Decisionmaker
Comments: One commenter stated that cross-examination does not need
to occur in the form of advisor-conducted questioning, noting that the
Sixth Circuit emphasized that such questioning only must occur ``in
front of the fact-finder'' so that the postsecondary institution can
conduct a credibility assessment.\72\
---------------------------------------------------------------------------
\72\ The commenter cited Baum, 903 F.3d at 583.
---------------------------------------------------------------------------
Other commenters noted some courts have held that due process
requires advisor-conducted cross-examination. The commenters also
stated that courts have recognized that postsecondary institutions have
a legitimate interest in avoiding procedures that may subject a
complainant to further harassment and advisor-conducted cross-
examination provides the benefits of cross-examination without
subjecting the complainant to further trauma. The commenters further
explained that courts have held that basic fairness requires a live,
meaningful, adversarial hearing and some method of cross-examination.
[[Page 33736]]
Some commenters were concerned that postsecondary institutions will
have difficulty complying with applicable Federal or State case law or
State or local laws requiring live hearings with advisor-conducted
cross-examination in specific circumstances. Some commenters asserted
that the Department failed to adequately justify removing the 2020
amendments' requirement for live hearings with advisor-conducted cross-
examination.
Discussion: The Department acknowledges that, as noted by
commenters and discussed in the July 2022 NPRM, Federal and State
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, but the decisions differ in terms of what
specific method is necessary. See 87 FR 41505-07. In Winnick v.
Manning, the court held 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. 460 F.2d 545, 549-50 (2d Cir. 1972). In some cases
involving postsecondary institutions with procedures that included a
live hearing model, courts have held that some method of live
questioning is required in certain circumstances but have stopped short
of requiring that it be conducted by a party's advisor. In Haidak v.
University of Massachusetts-Amherst, the court held that adversarial
cross-examination was not required, and a postsecondary institution
could satisfy due process by having a neutral school official pose
probing questions in real time. 933 F.3d at 69-70. Relying on the
holding in Haidak, the court in Overdam v. Texas A&M University held in
a sexual assault case in which suspension was imposed that due process
requires some opportunity for real-time questioning, even if only
through a hearing panel, but does not require the questioning be done
by the respondent's attorney. 43 F.4th 522, 529-30 (5th Cir. 2022). On
the other hand, some courts have held that questioning by an advisor at
a live hearing is required. In University of Sciences, the court held a
university's contractual promises of fair and equitable treatment
``require[d] at least a real, live, and adversarial hearing and the
opportunity for the accused student or his or her representative to
cross-examine witnesses--including his or her accusers.'' 961 F.3d at
215. And, responding to similar concerns about a university's
procedures limiting a student's ability to challenge the credibility of
witnesses, the court in Baum held that ``some form of cross-
examination'' was necessary to satisfy due process in sexual misconduct
cases that turn on party credibility. 903 F.3d at 581.\73\
---------------------------------------------------------------------------
\73\ Some commenters relied on Doe v. Allee, 30 Cal. App. 5th
1036, 1039 (Ct. App. 2019), for the holding that fundamental
fairness requires, at a minimum, that the university provide a way
for people accused of sexual misconduct to cross-examine witnesses,
directly or indirectly, at a hearing where the witnesses appear in
person or by other means. The Department notes that the California
Supreme Court recently disapproved that holding in Boermeester v.
Carry, 15 Cal.5th 72, 95 (Cal. 2023), cert. denied, 144 S. Ct. 497
(2023). In the absence of constitutional protections, courts
generally have required that private school disciplinary procedures
adhere to a fundamental or basic fairness standard. See, e.g., Lisa
Tenerowicz, Student Misconduct at Private Colleges and Universities:
A Roadmap for ``Fundamental Fairness'' in Disciplinary Proceedings,
42 B.C. L. Rev. 653 (2001).
---------------------------------------------------------------------------
Since the publication of the July 2022 NPRM, at least one court has
taken an approach similar to Sec. 106.46(f)(1) by giving private
postsecondary institutions discretion to develop their own procedures
for assessing credibility. In Boermeester, the California Supreme Court
held that the common law doctrine of fair procedure requires notice of
the charges and a reasonable opportunity to respond, but does not
require private universities to provide respondents the opportunity to
directly or indirectly cross-examine the complainant and other
witnesses at a live hearing. 15 Cal.5th at 93. Instead, the court
directed private postsecondary institutions to balance competing
interests to craft the precise procedures necessary to afford a party
with notice and an opportunity to respond. Id. at 90, 93.
It is also important to note that each court that has opined on the
issue of whether and in what form cross-examination is required has
reviewed the specific facts and circumstances to determine what process
was required, including what other procedural protections, if any, were
provided to the respondent and the potential burden on the
postsecondary institution of requiring cross-examination at a live
hearing. For example, in Baum the court noted that providing Doe with
the opportunity for cross-examination would have cost little for the
university because it already provided a hearing with cross-examination
in all misconduct cases other than those involving sexual assault. 903
F.3d at 582. In Nash, the court upheld a procedure allowing the parties
to ask questions of hearing participants through the non-voting
chancellor of the Student Board of Ethical Relations, concluding that,
although the opportunity to question witnesses directly would have been
valuable, ``there was no denial of [the students'] constitutional
rights to due process by their inability to question the adverse
witnesses in the usual, adversarial manner.'' 812 F.2d at 663-64. In
Boermeester, the court held fair process did not require a private
university to conduct a live hearing with the respondent in attendance
and with the respondent directly or indirectly cross-examining the
complainant. 15 Cal.5th at 93. The court noted that the university
provided the respondent with the opportunity to provide his version of
events in an interview with the investigator, the opportunity to review
evidence with his attorney-advisor, the opportunity to submit his own
evidence and witnesses, the opportunity to respond to evidence during a
hearing although he declined to attend in favor of responding to the
evidence in writing, and the opportunity to appeal. Id. at 94-95.
In addition, similar to the Department's approach, courts have
considered a variety of factors when determining what process is due in
sexual misconduct cases. See, e.g., Haidak, 933 F.3d at 66 (noting the
interests at stake in school disciplinary proceedings include the
respondent's interest in completing their education and avoiding unfair
or mistaken exclusion from the educational environment and the
accompanying stigma; the school's interest in protecting itself and
other students from students whose behavior violates the basic values
of the school; and balancing the need for fair discipline against the
need to allocate resources to educating students (citing Gorman v.
Univ. of R.I., 837 F.2d 7, 14 (1st Cir. 1988); Goss, 419 U.S. at 580,
583); Boermeester, 15 Cal.5th at 93 (explaining that, when designing
the procedures necessary to provide a meaningful opportunity to
respond, a private university must balance its own interest in a fair
proceeding and completing an education; and the university's interest
in maintaining a safe campus, encouraging students to report sexual
misconduct, and encouraging witnesses to participate in the process
without having to divert too many resources away from educating
students).
Together, the cases discussed above recognize the diversity of
interests at stake in sex-based harassment grievance procedures and the
ways in which particular cases and particular
[[Page 33737]]
institutions may vary considerably from one to another. The courts'
observations in these cases are consistent with the Department's own
experience in enforcing Title IX across a broad range of recipients and
with respect to many alleged forms of discrimination. As a result, the
Department is persuaded that affording more discretion to recipients to
develop processes for conducting grievance procedures is appropriate.
Although the Department recognizes that these final regulations depart
from the 2020 amendments with respect to the requirement of live
hearings, the Department maintains--after reevaluating the relevant
considerations, including case law post-dating the 2020 amendments,
such as Boermeester and Overdam--that these final regulations will more
appropriately respect the interests of both institutions and parties.
In response to concerns that postsecondary institutions will have
difficulty complying with applicable Federal or State case law or State
or local laws requiring live hearings with questioning by an advisor in
specific circumstances, the Department notes that nothing in Sec.
106.46(f)(1) or elsewhere in the final regulations precludes a
postsecondary institution from choosing to use a live hearing with
questioning by an advisor, either because it is required under
applicable Federal or State case law or for any other reason, and the
Department expects that some postsecondary institutions will choose to
maintain the approach required under the 2020 amendments.
The Department did not fail to adequately justify removing the 2020
amendments' requirement for live hearings with advisor-conducted cross-
examination. As an initial matter, and as the Department acknowledged
in the preamble to the 2020 amendments, due process does not in all
cases require the specific procedures that were included in the Sec.
106.45 grievance process under the 2020 amendments, including the
requirement for live hearings with advisor-conducted cross-examination.
See 85 FR 30053 (``The Department acknowledges that constitutional due
process does not require the specific procedures included in the Sec.
106.45 grievance process.''). Those provisions were adopted as a matter
of policy. The preamble to the 2020 amendments explained that the
Department was prescribing this and other requirements in Sec. 106.45
because the Department's view at the time was that the provisions were
important to ensuring a fair process for both parties. See id. After
reconsidering the issue, and for reasons discussed in detail above, the
Department has decided to permit a live-questioning process while
removing the requirement for live hearings with questioning by an
advisor to be conducted in all circumstances. Throughout the July 2022
NPRM and this preamble, the Department provides the requisite reasons,
discussion, and justification for the removal of the requirement in the
2020 amendments for live hearings with advisor-conducted cross-
examination. See, e.g., 87 FR 41503.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Scholarship on Cross-Examination
Comments: One commenter asserted that the scholarship the
Department cited in support of the superiority of the inquisitorial
approach to cross-examination was outdated because it was published
before the 2020 amendments. The commenter also stated that the
scholarship cited by the Department discussed approaches to cross-
examination outside of Title IX and the school setting.
Discussion: The Department acknowledges that the scholarship on
cross-examination discussed in the July 2022 NPRM, 87 FR 41507, was
published prior to the 2020 amendments and involved approaches to
cross-examination outside of the Title IX or school disciplinary
context. The Department still maintains that such scholarship on the
effectiveness of adversarial cross-examination is helpful to consider
as one of a number of factors in finalizing these regulations. The
Department recognizes that cross-examination can be an appropriate tool
for seeking the truth, especially when conducted by an experienced
attorney. However, the Department maintains the position that
scholarship has not yet shown that cross-examination is the only way to
produce reliable outcomes in sex-based harassment complaints involving
students at postsecondary institutions. The Department notes that the
court in Haidak took a similar position, stating that it was ``aware of
no data proving which form of inquiry produces the more accurate result
in the school disciplinary setting.'' 933 F.3d at 68. The court
acknowledged that ``[c]onsiderable anecdotal experience suggests that
cross-examination in the hands of an experienced trial lawyer is an
effective tool,'' but it then observed that courts have generally found
that a respondent has no right to legal counsel in school disciplinary
proceedings, leading it to doubt whether--in the absence of such
counsel--cross-examination would actually increase the probative value
of hearings. Id. at 68-69. In addition, in University of Arkansas-
Fayetteville, the court noted that ``[w]hile adversarial cross-
examination, when employed by a skilled practitioner, can be an
effective tool for discovering the truth, there are legitimate
governmental interests in avoiding unfocused questioning and displays
of acrimony by persons who are untrained in the practice of examining
witnesses.'' 974 F.3d at 868 (internal citations omitted).\74\
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\74\ As stated in Haidak, there is generally no right to counsel
in disciplinary proceedings. 933 F.3d at 69.
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Changes: All changes to Sec. 106.46(f)(1) are described below.
Consideration of All Viewpoints
Comments: One commenter asserted that the Department did not
consult with certain stakeholders before proposing to remove the
requirement for live hearings with advisor-conducted cross-examination
and that the Department failed to acknowledge previously stated
positions of OCR leadership regarding cross-examination.
Discussion: The Department disagrees with the commenter's
assertions. The July 2022 NPRM discussed the Department's consideration
of all viewpoints, including the opportunity for stakeholders to
provide input at the June 2021 Title IX Public Hearing and the
Department's engagement with various stakeholders and other members of
the public in developing the proposed regulations. 87 FR 41395-96. All
of these stakeholders' views were considered in development of the July
2022 NPRM. The Department then considered more than 240,000 comments
received on the July 2022 NPRM and that input was taken into account
with respect to each issue addressed in these final regulations,
including Sec. 106.46(f)(1). Throughout this process, the Department
has properly followed, and as described above exceeded, the
requirements of the Administrative Procedure Act (APA) in promulgating
these final regulations. See Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (noting that
the Court has ``repeatedly stated that the text of the APA provides the
maximum procedural requirements that an agency must follow in order to
promulgate a rule.'' (quotation marks omitted) (citations omitted)).
Previously articulated views of Department officials are addressed in
the discussion of Views of Assistant Secretary Lhamon (Section VII).
Changes: All changes to Sec. 106.46(f)(1) are described below.
[[Page 33738]]
Live-Questioning Process, Individual Meeting Logistics, Recordings of
Meetings
Comments: Some commenters requested clarification regarding the
logistics of live questioning and individual meetings, including how
individual meetings with parties and witnesses would work in practice,
the scope of the live-questioning process, and whether a postsecondary
institution could choose to hold a live hearing without questioning by
an advisor. Some commenters asked whether individual meetings may be
held virtually and whether the individual meetings with parties and
witnesses must occur at the same time or separate from investigative
interviews. Some commenters asked the Department to clarify whether
there was a limit on the number of individual meetings a postsecondary
institution would be required to hold and expressed concern that the
process could be time consuming and more cumbersome than a live
hearing.
Some commenters asked the Department to clarify whether the parties
could propose questions to ask of witnesses in addition to the other
party and whether investigators or decisionmakers could conduct
individual meetings and with whom. One commenter asked the Department
whether a postsecondary institution that uses a panel of decisionmakers
must have the entire panel of decisionmakers present for individual
meetings, or whether one decisionmaker can represent the panel.
Some commenters stated that if a postsecondary institution used
individual meetings instead of a live hearing and wanted to give the
parties a meaningful opportunity to be heard, it must record the
individual meetings and give opportunities to respond and ask follow-up
questions until each party's statements were fully explored.
One commenter suggested that the Department prohibit credibility
questions about a complainant's sexual history.
Some commenters said that a live hearing with advisor-conducted
cross-examination is necessary because of the proposed limitations on a
respondent's access to the evidentiary record and asked the Department
to clarify whether the information gathered during individual meetings
would be considered evidence that must be provided to the parties.
Some commenters suggested that the Department provide three options
for assessing credibility: (1) live hearings with questioning by an
advisor; (2) live hearings with questioning by the decisionmaker; and
(3) another process that allows each party to suggest questions of the
other party and witnesses to be asked by the investigator or
decisionmaker, respond to the evidence by the other party, and have
access to all information made available to the decisionmaker.
Discussion: Notwithstanding that the Department maintains the
position that postsecondary institutions must be permitted, but not
required, to use live hearings with advisor-conducted cross-
examination, upon considering the commenters' concerns, suggestions,
and requests for clarification, the Department has made several
revisions to proposed Sec. 106.46(f)(1) that are reflected in the
final regulations. These revisions are designed to clarify the process
for live questioning as well as to ensure that whatever live-
questioning process a postsecondary institution chooses to use under
Sec. 106.46(f)(1) provides an adequate opportunity for the parties to
be meaningfully heard and respond to the allegations.
Commenters raised several concerns about proposed Sec.
106.46(f)(1), regarding how individual meetings with parties and
witnesses would work in practice, the scope of the live-questioning
process, and whether a postsecondary institution could choose to hold a
live hearing without advisor-conducted cross-examination. The
Department finds many of these concerns persuasive and is making the
following changes and offering the following clarifications to address
them, provide additional clarity, and ensure that the live-questioning
process provides a meaningful opportunity for the decisionmaker to
assess credibility and for the parties to respond.
First, the Department has revised the introductory language in
proposed Sec. 106.46(f)(1) to clarify that this provision covers a
process that enables a decisionmaker to question a party or witness to
assess a party's or witness's credibility and to more clearly set forth
the manner in which such questioning must occur.
Second, the Department has revised and reorganized proposed Sec.
106.46(f)(1) to add a new Sec. 106.46(f)(1)(i) describing the process
for live questioning when a postsecondary institution chooses not to
conduct a live hearing. The revisions make clear that when a
postsecondary institution chooses not to conduct a live hearing, the
process for proposing and asking relevant and not otherwise
impermissible questions and follow-up questions of parties and
witnesses under Sec. Sec. 106.2 and 106.45(b)(7) must allow the
investigator or decisionmaker to ask such questions during individual
meetings with a party or witness; must allow each party to propose such
questions that the party wants asked of any party or witness and have
those questions asked by the investigator or decisionmaker during one
or more individual meetings, including follow-up meetings; and must
provide each party with a recording or transcript of the individual
meeting with enough time for the party to have a reasonable opportunity
to propose follow-up questions. In response to a commenter's suggestion
that the Department prohibit credibility questions about a
complainant's sexual history, the Department notes that Sec.
106.46(f)(1) requires that credibility questions comply with Sec.
106.45(b)(7)(iii), which addresses evidence that relates to the
complainant's sexual interests or prior sexual conduct.
Third, after considering commenters' concerns, the Department has
determined that revisions are necessary to further guarantee that a
respondent has a meaningful opportunity to respond even outside of a
live hearing and better enable all parties to propose follow-up
questions to be asked of parties and witnesses during individual
meetings. To address this concern, the Department has added new Sec.
106.46(f)(1)(i)(C), which as mentioned above, requires postsecondary
institutions that choose not to hold a live hearing to provide each
party with an audio or audiovisual recording or transcript of the
individual meetings with enough time for the party to have a reasonable
opportunity to propose follow-up questions. The Department acknowledges
that providing a recording or transcript of a party's or witness's
statement with an opportunity for follow-up questions based on that
recording or transcript is not identical to the process of live
questioning that may play out in a civil or criminal trial. The
Department reiterates, however, that these regulations establish only
the baseline procedures that recipients must follow. Any recipient that
concludes that its constitutional obligations, other sources of
authority, or other circumstances require additional procedural
protections may provide for such protections.
Regarding individual meetings and the evidentiary record, the
Department notes that in addition to receiving a recording or
transcript of the individual meetings with parties and witnesses, the
final regulations at Sec. 106.46(e)(6)(i) require a postsecondary
institution to provide an equal opportunity to access either the
relevant and not otherwise impermissible evidence, or the same
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written investigative report that accurately summarizes this evidence
and to provide an equal opportunity to access the relevant and not
otherwise impermissible evidence upon the request of either party if
the postsecondary institution provides access to an investigative
report. The information gathered at individual meetings with parties
and witnesses would be part of the evidence or investigative report
that accurately summarizes the evidence covered under the final
regulations at Sec. 106.46(e)(6)(i), and the final regulations at
Sec. 106.46(e)(6)(ii) require a postsecondary institution to provide
the parties with a reasonable opportunity to review and respond to the
evidence or investigative report prior to the determination whether
sex-based harassment occurred. Therefore, the parties will have an
opportunity to respond to the information gathered during the
individual meetings with parties and witnesses as part of their
opportunity to review and respond to the evidence or investigative
report.
Fourth, in response to questions regarding the number of individual
meetings, the revised language of Sec. 106.46(f)(1)(i)(B) also
clarifies that there may be one or more individual meetings, including
follow-up meetings with the parties and witnesses, as needed to
establish facts, assess credibility, and ask follow-up questions. It is
not necessary to specify how many individual meetings must occur
because the appropriate number will vary depending on the facts and
circumstances of the case and the type and number of questions proposed
by the parties, but the Department also does not anticipate that there
would be an endless cycle of meetings. In addition, the Department
notes that questions proposed by the parties to be asked of parties and
witnesses must be relevant and not otherwise impermissible under
Sec. Sec. 106.2 and 106.45(b)(7) and may not be unclear or harassing
under Sec. 106.46(f)(3). Thus, if at some point the follow-up
questions proposed by the party are duplicative of questions that have
already been asked or are designed to harass as opposed to assess
credibility or elicit relevant information, the postsecondary
institution may decline to hold additional meetings to ask the
questions. The Department accordingly maintains that Sec. Sec. 106.2,
106.45(b)(7), and 106.46(f) will ensure that the questioning process is
not overly long or burdensome.
Fifth, the July 2022 NPRM discussed questioning by the
decisionmaker in individual meetings and also referred to the parties
proposing questions to the investigator or decisionmaker to ask during
individual meetings. See, e.g., 87 FR 41503-09. The discussion referred
to witnesses in some places, but not all places, which the Department
understands created confusion regarding whether investigators or
decisionmakers could conduct individual meetings and with whom. In
response to commenters' requests for clarification, the revised
language in Sec. 106.46(f)(1) clarifies throughout that the individual
meetings would be with meetings with parties and meetings with
witnesses, as opposed to just parties. It also clarifies that the
individual meetings may be conducted by the investigator,
decisionmaker, or both, at the institution's discretion. See Sec.
106.46(f)(1)(i)(B). The Department declines to specify whether a
postsecondary institution that uses a panel of decisionmakers must have
the entire panel of decisionmakers present for individual meetings, or
whether one decisionmaker can represent the panel, because that is a
determination best left to the postsecondary institution. Regardless of
whether the investigator, decisionmaker, or both will attend the
individual meetings with the parties and witnesses, the Department
notes that under Sec. 106.46(f)(3) the decisionmaker must determine
before the question is posed whether a question proposed by the parties
is relevant and not otherwise impermissible under Sec. Sec. 106.2 and
106.45(b)(7) or unclear or harassing under Sec. 106.46(f)(3), and the
institution must ensure that the process it adopts under Sec.
106.46(f)(1) enables a decisionmaker to adequately assess the
credibility of parties and witnesses.
In response to comments regarding whether individual meetings may
be held virtually, the Department clarifies that nothing in the final
regulations precludes a recipient from conducting individual meetings
with parties and witnesses virtually with technology enabling the
decisionmaker or investigator and the party or witness to
simultaneously see and hear one another.
In response to comments regarding the timing of individual
meetings, the Department notes that a postsecondary institution has
discretion to determine whether the individual meetings with parties
and witnesses occur at the same time or separate from investigative
interviews. The Department also clarifies that, as discussed above, the
information gathered through these individual meetings would be part of
the evidence or investigative report under the final regulations at
Sec. 106.46(e)(6)(i) to the extent the information is relevant and not
otherwise impermissible, and thus the individual meetings would occur
before the parties receive access to the evidence or investigative
report.
Sixth, in response to confusion regarding whether a postsecondary
institution that uses a live hearing would be required to allow
questioning by an advisor, the Department has made additional revisions
to proposed Sec. 106.46(f)(1). The Department has reorganized Sec.
106.46(f)(1) and added Sec. 106.46(f)(1)(ii)(A) and (B), stating that
when a postsecondary institution chooses to conduct a live hearing
under Sec. 106.46(g), the process must allow the decisionmaker to ask
such relevant and not otherwise impermissible questions and follow-up
questions of parties and witnesses, including questions challenging
credibility, and either: (a) allow each party to propose such questions
that the party wants asked of any party or witness and have those
questions asked by the decisionmaker as long as they are not unclear or
harassing, or (b) allow each party's advisor to ask any party or
witness such questions as long as they are not unclear or harassing.
The Department did not intend to require questioning by an advisor in
live hearings, and the revised language makes clear that postsecondary
institutions that use a live hearing may either permit the parties to
propose questions to be asked of any party or witness by the
decisionmaker or may permit questioning by an advisor of any party or
witness.
Some commenters suggested that the Department provide three options
for assessing credibility: (1) live hearings with questioning by an
advisor; (2) live hearings with questioning by the decisionmaker; and
(3) any process that allows each party to suggest questions of the
other party and witnesses to be asked by the investigator or
decisionmaker, respond to the evidence by the other party, and have
access to all information made available to the decisionmaker. The
Department notes that the changes made to Sec. 106.46(f)(1) provide
for each of these options.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Methods for Assessing Credibility
Comments: One commenter asked whether a postsecondary institution
must use the same method for assessing credibility for each party or
witness in a particular live hearing, and whether the same method of
assessing credibility must be used for all live hearings held by a
postsecondary institution.
[[Page 33740]]
Discussion: The Department clarifies that, as explained in the
discussion of Sec. 106.45(b)(8), a postsecondary institution is not
required to use the same method of assessing credibility for all live
hearings, but absent a party's need for a disability or language access
accommodation or the provision of auxiliary aids or services, it must
use the same method for assessing credibility for each party or witness
within resolution of a particular complaint because grievance
procedures must be fair and treat the parties equitably. The Department
added Sec. 106.45(b)(8) to clarify, for example, that a postsecondary
institution may use a different method of assessing credibility at a
live hearing for different sex-based harassment complaints, but the
postsecondary institution must articulate consistent principles in its
written grievance procedures for how it will determine which method of
assessing credibility will apply (e.g., use questioning by an advisor
for sex-based harassment complaints when the maximum sanction is
suspension or expulsion and have the decisionmaker ask questions
proposed by the parties for other complaints of sex-based harassment,
or use questioning by an advisor for all sex-based harassment
complaints unless one of the parties or witnesses is a minor). This
provision ensures that a recipient's educational community is aware in
advance of what method of assessing credibility will be used. Under
this provision, for example, a postsecondary institution that chooses
to use a live hearing with questioning by an advisor only for some
types of sex-based harassment complaints would be required to explain
in its grievance procedures under what circumstances or to which types
of sex-based harassment complaints a live hearing with questioning by
an advisor would apply. In addition, a recipient's determination
regarding whether to apply certain procedures to some, but not all,
complaints must be made in a manner that treats complainants and
respondents equitably consistent with Sec. 106.45(b)(1).
Changes: All changes to Sec. 106.46(f)(1) are described below.
Cross-Examination and Advisors of Choice
Comments: Some commenters said parties should not be able to
personally cross-examine each other at a live hearing. Other commenters
argued that the proposed regulations should be revised to allow
respondents to directly cross-examine complainants if they lack an
advisor or if their advisor is unwilling to conduct cross-examination.
Some commenters asked whether a postsecondary institution is required
to provide an advisor of choice if it is not using a live hearing with
questioning by an advisor. Some commenters asked whether a
postsecondary institution could place restrictions on the extent to
which an advisor may participate in a live hearing. Some commenters
were concerned about confidential employees serving as an advisor of
choice. Other commenters suggested that the Department focus on other
roles advisors play besides conducting cross-examination, such as
providing support for a party.
Discussion: The Department appreciates the opportunity to clarify
that even if a postsecondary institution chooses to use a live hearing
with questioning by an advisor, the parties are never permitted to
personally cross-examine each other, and that this prohibition, which
exists in the 2020 amendments at Sec. 106.45(b)(6)(i), is expressly
included in what is now Sec. 106.46(f)(1)(ii)(B).
In response to comments regarding advisors of choice, the
Department clarifies that the requirement in Sec. 106.46(f)(1)(ii)(B)
to provide an advisor for a party who does not have one, who can ask
questions on their behalf, only applies if a postsecondary institution
is using a live hearing with questioning by an advisor. Nothing in the
final regulations requires a postsecondary institution to provide a
party with an advisor under any other circumstances. The Department
also clarifies that although a postsecondary institution is permitted
to use live hearings with questioning by an advisor even in such cases,
the postsecondary institution, not the advisor, is responsible for
conducting and overseeing the hearing. The Department notes that under
Sec. 106.46(e)(2), a postsecondary institution may establish
restrictions regarding the extent to which an advisor may participate
in the grievance procedures, as long as the restrictions apply equally
to the parties. Thus, a postsecondary institution that is using a live
hearing without questioning by an advisor may, for example, place
limitations on an advisor's ability to speak during the live hearing.
As explained more fully in the discussion of Sec. 106.44(d), in
response to comments, the Department has revised Sec.
106.46(f)(1)(ii)(B) to state that, when a postsecondary institution is
required to appoint an advisor to ask questions on behalf of a party
during advisor-conducted questioning, to avoid potential conflicts of
interest a postsecondary institution may not appoint or otherwise
require an individual who is currently a confidential employee or an
individual who received information related to a particular case as a
confidential employee to serve as the advisor in that case. However, as
also explained in the discussion of Sec. 106.44(d), a party may choose
to have a confidential employee serve as the advisor of the party's
choice under Sec. 106.46(e)(2). The Department maintains that this
approach respects the party's autonomy to choose an advisor while
avoiding conflicts of interest that may arise from requiring a
confidential employee to act as an advisor for the live hearing. The
Department declines to make other changes with respect to the
discussion of the role of advisors, but notes that under Sec.
106.46(e)(2), a party has the right to be accompanied to any meeting or
proceeding by an advisor of their choice, and this right applies
regardless of whether a postsecondary institution is using live
hearings with questioning by an advisor and includes the right to be
accompanied by an advisor to individual meetings held under Sec.
106.46(f)(1)(i).
In response to a commenter's suggestion that the Department focus
on other roles advisors play besides conducting cross-examination, such
as providing support for a party, the Department notes that nothing in
the final regulations prohibits an advisor from providing support for a
party regardless of whether the advisor will also be conducting the
questioning.
Changes: All changes to Sec. 106.46(f)(1) are described below.
When Credibility Is in Dispute
Comments: Some commenters asked why a decisionmaker only needs to
assess credibility when it is in dispute and relevant to the
allegations, asserting this limitation would give postsecondary
institutions too much discretion. Some commenters said that the
credibility of both parties is almost always an issue. Some commenters
suggested that the Department add specific language to the regulatory
text regarding how to determine whether credibility is in dispute. A
group of commenters asked the Department to clarify whether a
postsecondary institution is required to make specific findings on
whether credibility is in dispute and relevant prior to cross-
examination of each witness.
Discussion: In response to commenters who questioned why the
requirements in proposed Sec. 106.46(f)(1) would apply only when
credibility is in dispute, the Department maintains that it is
appropriate to require a postsecondary institution to provide a
[[Page 33741]]
process that enables decisionmakers to question parties and witnesses
to adequately assess their credibility when credibility is in dispute
and relevant to one or more allegations of sex-based harassment. As
explained in the July 2022 NPRM, courts have held that cross-
examination is unwarranted in situations in which credibility is not in
dispute. See 87 FR 41508. The Department declines commenters'
suggestion to add specific language to the regulatory text regarding
how to determine whether credibility is in dispute because whether
credibility is in dispute requires a fact-specific analysis. The
Department explains that cases in which credibility is in dispute
include those in which the recipient's determination relies on
testimonial evidence, including cases in which a recipient ``has to
choose between competing narratives to resolve a case.'' Baum, 903 F.3d
at 578, 584.
The Department acknowledges that credibility disputes may be more
common in sex-based harassment cases than other types of postsecondary
discipline cases, but credibility is not in dispute in every sex-based
harassment case. See Univ. of Cincinnati, 872 F.3d at 406 (recognizing
that credibility is commonly in dispute in sex-based harassment cases
but then observing that universities might also impose discipline based
on evidence other than disputed witness testimony). For example, courts
have held that credibility is not in dispute in the following
situations: (1) when the respondent admits to engaging in the
misconduct or admits the crucial facts at issue, see, e.g., 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); Winnick, 460 F.2d at 549-50 (due process did not
require cross-examination because, among other reasons, credibility was
not at issue because the plaintiff admitted to the crucial fact at
issue); Doe v. Univ. of Neb., 451 F. Supp. 3d 1062, 1123 (D. Neb. 2020)
(no right to cross-examination exists when the accused admits to
engaging in the misconduct); and (2) when a recipient reaches a
decision based on evidence other than the complainant's statements,
see, e.g., Plummer, 860 F.3d at 767, 775-76 (holding that a respondent
had no right to cross-examination when the defendant university did not
rely on testimonial evidence from the complainant); Flor v. Univ. of
N.M., 469 F. Supp. 3d 1143, 1153-54 (D.N.M. 2020) (holding there was no
right to cross-examination 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). As explained in the July 2022
NPRM, in these situations, a postsecondary institution would not be
required to implement its questioning process required under Sec.
106.46(f)(1). See 87 FR 41508. The Department also clarifies that a
postsecondary institution is not required to make specific findings on
whether credibility is in dispute and relevant prior to cross-
examination of each witness.
Changes: All changes to Sec. 106.46(f)(1) are described below.
The Clery Act and Live Hearings or Individual Meetings
Comments: Some commenters noted that the Clery Act does not require
a live hearing or individual meetings and questioned why the proposed
regulations needed to include such requirements.
Discussion: The Department agrees that, as some commenters noted,
the Clery Act does not require a live hearing or individual meetings
with the decisionmaker. The Department promulgates these final
regulations under Title IX and not under the Clery Act. The Department
acknowledges that its Clery Act regulations overlap with these final
regulations and impose different but not conflicting requirements in
some circumstances. It has always been true that some recipients that
are subject to both the Clery Act and the Title IX regulations must
comply with both sets of regulations. The Department's regulations
implementing the Clery Act establish requirements specific to the
authority under and purposes of the Clery Act. As also acknowledged in
the 2020 amendments, the lack of a live hearing or live meeting
requirement in the Clery Act does not present a conflict, see 85 FR
30512-13, and the Department maintains that recipients are able to
comply with the requirements of the Clery Act and these final
regulations.
Changes: All changes to Sec. 106.46(f)(1) are described below.
Additional Suggestions From Commenters
Comments: Commenters offered a number of additional suggestions for
the Department regarding proposed Sec. 106.46(f)(1). These suggestions
included changing the language in proposed Sec. 106.46(f)(1) to focus
on reliability instead of assessing credibility; giving postsecondary
institutions the authority to institute rules of decorum in light of
the fact that some students will continue to be subject to questioning
by an advisor; and requiring postsecondary institutions to provide
reasonable accommodations to ensure full participation for people with
disabilities in the live hearing process. Some commenters recommended
using regional center consortiums to handle sex-based harassment cases.
Some commenters requested guidance regarding alternatives to assess
credibility beyond live hearings with questioning by an advisor, such
as trauma-informed methods and suggested the Department add training on
these topics to Sec. 106.8(d).
Discussion: In response to a commenter's suggestion that the
Department change the language in Sec. 106.46(f)(1) to focus on
reliability instead of assessing credibility, the Department agrees
that a decisionmaker's review of the evidence may include analyzing the
reliability of the evidence, but declines to change the language in
Sec. 106.46(f)(1) to focus on reliability. The Department notes that
the related case law discussed above uses the term credibility. The
Department also notes that a decisionmaker's determination regarding
whether sex-based harassment occurred is not limited to assessing
credibility, and the final regulations at Sec. 106.45(h)(1) explain
that a decisionmaker is also required to evaluate relevant and not
otherwise impermissible evidence for its persuasiveness. The Department
also maintains that postsecondary institutions are familiar with the
term credibility and its usage in sex-based harassment grievance
procedures.
In response to a commenter's suggestion that the Department permit
postsecondary institutions to institute rules of decorum in light of
the fact that some students will continue to be subject to cross-
examination, the Department reiterates that the requirements in Sec.
106.46(f)(3) operate as a floor, not a ceiling. Postsecondary
institutions remain free to implement rules of decorum at live hearings
beyond those specified in the final regulations at Sec. 106.46(f)(3),
as long as the rules apply equally to the parties.
The Department agrees with a commenter that postsecondary
institutions are required to provide reasonable accommodations to
ensure full participation for people with
[[Page 33742]]
disabilities in the live hearing process. The Department clarifies that
recipients must comply with applicable disability laws, including by
providing appropriate reasonable accommodations and providing auxiliary
aids and services during a live hearing. What is required will depend
on the disability and the circumstances, but might include, for
example, providing a party or witness with extra time to answer a
question or a particular means of answering questions. For additional
information regarding complying with applicable disability laws
throughout the grievance procedures, see the discussion of Sec.
106.8(e).
The Department acknowledges commenters' recommendations for using
regional center consortiums to handle sex-based harassment cases. Under
the final regulations, consistent with the Department's position in the
preamble to the 2020 amendments, recipients remain free to consider
alternate investigation and adjudication models, including regional
center models that outsource the investigation and adjudication
responsibilities to outside experts. See 85 FR 30026, 30063. The
Department notes that, even if a postsecondary institution chooses to
outsource the investigation and adjudication function, the
postsecondary institution as the recipient of Federal funding from the
Department remains responsible for ensuring that its grievance
procedures comply with the requirements in Sec. 106.45, and if
applicable Sec. 106.46.
The Department acknowledges commenters' request for guidance
regarding alternatives to assess credibility beyond live hearings with
questioning by an advisor, such as trauma-informed methods. The
Department notes that Sec. 106.46(f)(1) includes two alternatives to
advisor-conducted cross-examination, i.e., live questioning in
individual meetings with an investigator or decisionmaker or a live
hearing with questioning by the decisionmaker. Section 106.46(g) also
permits institutions to hold a live hearing with the parties in
separate locations, and, in an effort to address potential trauma to
any of the parties, Sec. 106.46(f)(3) of the final regulations
prohibits unclear or harassing questions. The Department understands
that supporting recipients in the implementation of these regulations
is important and will offer technical assistance, as appropriate, to
promote compliance.
The Department declines commenters' suggestions to add additional
training topics beyond the requirements of Sec. 106.8(d), leaving
flexibility to recipients to determine how to meet training
requirements in a manner that best fits the recipient's unique
educational community. The Department notes that the final regulations
at Sec. 106.8(d)(2) require all investigators, decisionmakers, and
other individuals responsible for implementing a postsecondary
institution's grievance procedures to be trained on how to serve
impartially, including by avoiding prejudgment of the facts at issue,
conflicts of interest, and bias.
Changes: The Department has revised Sec. 106.46(f)(1) to clarify
that it covers the process for questioning parties and witnesses to aid
in evaluating allegations and assessing credibility. The Department has
also reorganized Sec. 106.46(f)(1) to clarify that there are two
options for questioning parties and witnesses to adequately assess a
party's or witness's credibility, depending on whether the
postsecondary institution chooses to conduct a live hearing. Section
106.46(f)(1)(i) governs the process when an institution chooses not to
conduct a live hearing, and Sec. 106.46(f)(1)(ii) governs the process
when an institution chooses to conduct a live hearing. Section
106.46(f)(1)(i) also clarifies the process for conducting individual
meetings with a party or witness, including, under Sec.
106.46(f)(1)(i)(A), that such meetings may be conducted with the
investigator or decisionmaker. In Sec. 106.46(f)(1)(i)(B), the
Department has clarified the process for allowing each party to propose
questions that the party wants asked of any party or witness by the
investigator or decisionmaker during individual meetings. The
Department has added Sec. 106.46(f)(1)(i)(C) to require each party to
receive a recording or transcript of any individual meetings with
parties or witnesses, with enough time for the party to have a
reasonable opportunity to propose follow-up questions. In Sec.
106.46(f)(1)(ii), the Department clarifies that if a postsecondary
institution chooses to use a live hearing, it may allow the questions
proposed by the party for any party or witness to be asked by the
decisionmaker or by the party's advisor, and that in those instances in
which a postsecondary institution is required to appoint an advisor to
ask questions on behalf of a party during advisor-conducted
questioning, a postsecondary institution may not appoint a confidential
employee to be the advisor.
Sec. 106.46(f)(3): Procedures for the Decisionmaker To Evaluate the
Questions and Limitations on Questions
Comments: Some commenters supported proposed Sec. 106.46(f)(3),
but noted that implementation would depend on what the decisionmaker
considers relevant. Other commenters welcomed the continued discretion
to limit advisor participation in proceedings and to establish rules of
decorum. One commenter supported proposed Sec. 106.46(f)(3), but asked
the Department to require the decisionmaker to explain the rationale
for excluding any question, not just those excluded due to relevance.
Some commenters asserted proposed Sec. 106.46(f)(3) exceeded
agency authority and was inconsistent with Title IX and case law
because they viewed it as banning credibility testing of the parties.
Some commenters asserted that the Department does not have the
authority to require parties to submit questions to the decisionmaker
for approval before asking them and expressed concern that allowing the
decisionmaker to approve questions would give the decisionmaker the
power to place arbitrary limits on questioning that may impact the
outcome of the grievance proceeding.
One commenter objected to the Department's proposal to prohibit
unclear or harassing questions as arbitrary and capricious and
expressed concern that this prohibition would lead decisionmakers to
exclude relevant questions.
Discussion: The Department maintains that it is appropriate for the
decisionmaker to 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. This requirement is consistent with
Sec. 106.45(b)(6)(i) in the 2020 amendments, which similarly requires
the decisionmaker to determine whether a question is relevant and
explain any decision to exclude a question as not relevant before a
complainant, respondent, or witness answers a cross-examination or
other question. The Department notes that although the 2020 amendments
do not include the term ``impermissible,'' as explained in the July
2022 NPRM, such questions and evidence were similarly prohibited under
various provisions in the 2020 amendments, and the Department simply
moved them to a single provision and categorized them as
``impermissible.'' See 87 FR 41470. The Department disagrees that
requiring prescreening of questions is a ban on testing credibility and
notes that Sec. 106.46(f)(1) requires postsecondary
[[Page 33743]]
institutions to provide a process that enables the decisionmaker to
question parties and witnesses to adequately assess a party's or
witness's credibility to the extent credibility is both in dispute and
relevant to one or more allegations of sex-based harassment.
In addition to being consistent with the 2020 amendments, requiring
prescreening of questions for relevance and permissibility increases
the efficiency and accuracy of the grievance procedures and, as stated
in the preamble to the 2020 amendments, reduces the potential for
traumatization of the parties. See 85 FR 30316. The Department also
maintains the position from the 2020 amendments that requiring
prescreening of questions does not result in unfairness or inaccuracy
because, for example, these final regulations at Sec. 106.8(d) require
a decisionmaker to be trained on how to serve impartially, including by
avoiding prejudgment of the facts at issue, conflicts of interest, and
bias. See 85 FR 30337.
The Department has the authority to require parties to submit
questions to the decisionmaker to determine whether a question is
relevant and not otherwise impermissible and declines to revise the
language in Sec. 106.46(f)(3) to permit someone other than the
decisionmaker to make the determination. In enacting Title IX, Congress
conferred the power to promulgate regulations onto the Department. 20
U.S.C. 1682. The Supreme Court has noted that ``[t]he express statutory
means of enforc[ing] [Title IX] is administrative,'' as ``[t]h[at]
statute directs Federal agencies that distribute education funding to
establish requirements that effectuate the nondiscrimination mandate,
and permits the agencies to enforce those requirements through `any . .
. means authorized by law' including ultimately the termination of
Federal funding.'' Gebser, 524 U.S. at 280-81 (quoting 20 U.S.C. 1682).
Thus, the Department is well within its authority under 20 U.S.C. 1682
to promulgate this provision.
The Department also notes that the 2020 amendments at Sec.
106.45(b)(6)(i) similarly require the screening of questions by the
decisionmaker for relevance and impermissibility and the Department has
the authority to limit questions to those that are relevant and not
otherwise impermissible. As explained elsewhere in this preamble, the
Department has concluded that information that is irrelevant or that
falls into one of the categories of impermissible evidence should not
be introduced into a proceeding because such information could delay or
confuse the proceedings, unduly infringe on parties' privacy interests,
or otherwise have pernicious consequences. The Department accordingly
maintains that requiring questions to be screened for relevance and
permissibility helps effectuate Title IX by ensuring that recipients'
grievance procedures are efficient and fair. See Sec. 106.45(b)(6) and
(h). The decisionmaker is the appropriate person to prescreen questions
for relevance and permissibility because, as explained above, the
decisionmaker is required to receive training on impartiality as well
as on the meaning and application of the term ``relevant'' and on the
types of evidence that are impermissible. The Department notes that to
assist the decisionmaker in making consistent determinations regarding
whether or not to exclude a question, the Department added a definition
of ``relevant'' to Sec. 106.2 that was not in the 2020 amendments.
Section 106.46(f)(3) also requires a decisionmaker to explain any
decision to exclude a question that is not relevant or otherwise
permissible. These requirements adequately guard against a
decisionmaker arbitrarily excluding questions. The Department also
notes that, consistent with the preamble to the 2020 amendments, the
``parties may appeal erroneous relevance determinations, if they
affected the outcome,'' 85 FR 30343, under the final regulations at
Sec. 106.46(i)(1)(i), which provides for ``appeal rights on grounds
that include procedural irregularity that affected the outcome.'' Id.
To align with language in Sec. 106.46(f)(1), the Department has
revised Sec. 106.46(f)(3) to require the decisionmaker to explain the
any decision to exclude questions that are impermissible in addition to
those that are excluded for relevance. But the Department declines to
require the decisionmaker to explain the rationale for excluding
questions that are unclear or harassing. To ensure that otherwise
permissible questions are not inadvertently rejected because they were
worded or framed in an unclear or harassing way, however, the
Department is persuaded that a party must have an opportunity to
clarify or revise a question that the decisionmaker has determined is
unclear or harassing. This opportunity to clarify or revise a question
is not available when a decisionmaker determines that a question is not
relevant or otherwise impermissible because, in those cases, it is the
underlying substance of the question--not the manner in which it was
asked--that is prohibited. The Department has revised Sec.
106.46(f)(3) to require this opportunity and to also require that the
question be asked if the party sufficiently clarifies or revises a
question so that it is no longer unclear or harassing. Permitting a
party to satisfactorily revise a question and have it asked ultimately
provides the decisionmaker and the parties with better evidence and
leads to more reliable outcomes as opposed to excluding the question
and requiring the decisionmaker provide a rationale for the exclusion.
It is also appropriate to require the decisionmaker to explain any
decision to exclude questions due to relevance or impermissibility
because the final regulations specifically define ``relevant'' and the
types of evidence that are impermissible, and decisionmakers receive
training on these issues. The terms ``harassing'' and ``unclear'' are
more easily understood by laypeople and thus do not require the same
level of explanation.
The Department disagrees with commenters who asserted that the
Department cannot prohibit questions that are unclear or harassing. As
noted above, in enacting Title IX, Congress conferred the power to
promulgate regulations onto the Department. 20 U.S.C. 1682. And the
Supreme Court has affirmed the agency's administrative authority ``to
establish requirements that effectuate the nondiscrimination mandate,''
and to enforce those requirements through ```any . . . means authorized
by law[.]''' Gebser, 524 U.S. at 280-81 (quoting 20 U.S.C. 1682). Thus,
the Department is well within its authority under 20 U.S.C. 1682 to
promulgate this provision. The Department also notes that the preamble
to the 2020 amendments similarly permitted a recipient to prohibit
advisors from questioning witnesses in an abusive, intimidating or
disrespectful manner, and noted that a recipient may remove an advisor
for asking a question in a harassing, intimidating, or abusive manner
(e.g., advisor yells, screams, or approaches a witness in an
intimidating manner). See, e.g., 85 FR 30319-20, 30324, 30331, 30342,
303061. Prohibiting such questions also serves the important purpose of
ensuring nondiscrimination by prohibiting harassment as a condition of
participating in grievance procedures. Declining to prohibit harassing
questions could deter students from reporting sex-based harassment
because of fears about traumatization during grievance proceedings,
ultimately impairing the goal of effectuating Title IX's mandate that
recipients operate their education programs and activities
[[Page 33744]]
free of discrimination on the basis of sex.
The Department declines to define unclear or harassing in the
regulatory text because the terms have wide and common general
understanding, and a determination of what specifically would be
harassing or unclear in particular scenarios is necessarily fact-
specific. The Department notes that the prohibition on these sorts of
questions could apply to both the question and to the manner in which
the question is asked. For assistance in understanding the meaning of
the terms, the Department directs the commenter to the above-cited
language from the preamble to the 2020 amendments, which was also
referenced in the July 2022 NPRM, id., and to the language in the July
2022 NPRM explaining that a question would be unclear if it is ``vague
or ambiguous such that it would be difficult for the decisionmaker or
party being asked to answer the question or 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.'' 87 FR 41510. The Department also notes
that, as explained above, Sec. 106.46(f)(3) has been revised to
require the decisionmaker to give a party an opportunity to clarify or
revise a question the decisionmaker deemed unclear or harassing and
have it asked if it is sufficiently clarified or revised. In addition,
as noted above, consistent with the 2020 amendments, under the final
regulations at Sec. 106.46(i)(1)(i), the parties may appeal the
erroneous exclusion of questions if they affected the outcome because
it provides for appeal rights on grounds that include procedural
irregularity that affected the outcome. See 85 FR 30343. The Department
clarifies that questions about the complainant's sexual interests would
always be excluded as impermissible, and questions about the
complainant's prior sexual conduct would be excluded as impermissible
unless offered to prove that someone other than the respondent
committed the alleged conduct or is evidence about specific incidents
of the complainant's prior sexual conduct with the respondent that is
offered to prove consent to the alleged sex-based harassment. See Sec.
106.45(b)(7)(iii). Whether other questions about a party's prior sexual
conduct are harassing is a fact-specific determination that depends on
the content of the question, the manner in which it is asked, and the
purpose for which is it offered.
The Department appreciates the opportunity to clarify that the ban
on unclear or harassing questions applies to questions asked of both
parties and witnesses. The language describing proposed Sec.
106.46(f)(3) in the July 2022 NPRM, which cited language from the
preamble to the 2020 amendments on this issue, discussed prohibiting
advisors from questioning parties or witnesses in an abusive,
intimidating, or disrespectful manner, and the Department did not
intend to limit the provision to parties. See 87 FR 41510. To clarify
this, the Department has revised the language in Sec. 106.46(f)(3) to
state that a postsecondary institution must not permit questions that
are unclear or harassing of the party or witness being questioned.
To provide additional clarity for postsecondary institutions
regarding their ability to impose and enforce rules of decorum, the
Department has revised the language in Sec. 106.46(f)(3) to state that
a postsecondary institution may ``adopt and apply other reasonable
rules regarding decorum'' instead of ``impose other reasonable rules
regarding decorum.''
Changes: The Department has revised Sec. 106.46(f)(3) to require a
decisionmaker to explain any decision to exclude a proposed question as
impermissible, as well as for relevance, and to require a party to have
the opportunity to clarify or revise a question that the decisionmaker
has determined is unclear or harassing and have the question asked if
it is sufficiently clarified or revised. The Department has also
clarified that unclear or harassing questions may not be asked of a
party or witness. Finally, the Department has revised the language to
clarify that a postsecondary institution may ``adopt and apply other
reasonable rules regarding decorum.''
Sec. 106.46(f)(4): Refusal To Respond to Questions and Inferences
Based on Refusal To Respond to Questions
Comments: Commenters offered varied opinions of proposed Sec.
106.46(f)(4). For example, some commenters supported proposed Sec.
106.46(f)(4) because the section as proposed required a decisionmaker
to disregard prior supportive statements of a party who does not
respond to questions related to their credibility while permitting a
decisionmaker to consider statements against interest made by the
party. Other commenters asserted that proposed Sec. 106.46(f)(4)
exceeded agency authority, was inconsistent with Title IX and case law,
including the court's decision in Victim Rights Law Center, 552 F.
Supp. 3d at 134, and created a ban on testing the credibility of the
parties. And other commenters viewed proposed Sec. 106.46(f)(4),
including the phrases ``does not respond to questions related to their
credibility'' and ``supports that party's position,'' as unworkable,
vague, or confusing. Some commenters were also concerned that proposed
Sec. 106.46(f)(4) could chill reporting because potential complainants
may choose not to report sex-based harassment if they know that if they
refuse to answer a question related to their credibility all of their
statements will be disregarded.
Commenters who favored giving postsecondary institutions additional
flexibility and discretion proposed various ideas for alternative
language. Some commenters suggested allowing a decisionmaker to rely on
prior statements and consider how the refusal to answer some or all
questions integrates with their overall credibility assessment or to
consider the party's refusal to respond to questions and give such
refusal the weight they deem appropriate under the totality of the
circumstances, noting this approach has been adopted by other
administrative hearing bodies when a witness is unavailable or
unwilling to appear to answer certain questions. One commenter
suggested that a postsecondary institution should be permitted to
consider the extent to which a party's evasiveness or apparent candor
impacts that party's credibility and be given reasonable discretion to
decide whether to consider or exclude certain evidence. Another
commenter opposed proposed Sec. 106.46(f)(4) because it would not
distinguish between a party or witness who intentionally refuses to
cooperate with an investigation and a party or witness who may not or
cannot remember aspects of the incident.
Some commenters were concerned that proposed Sec. 106.46(f)(4)
would only apply to parties and not witnesses and urged the Department
to apply proposed Sec. 106.46(f)(4) to witnesses in the same manner as
it applies to parties.
Some commenters were concerned that proposed Sec. 106.46(f)(4)
would conflict with some State laws that require a postsecondary
institution to give the complainant the choice as to whether the
complainant wants to repeat their account of the alleged sex-based
harassment.
One commenter asked the Department to remove the word ``solely''
because, according to the commenter, it is impermissible to draw any
inference based on lack of testimony, especially in cases that could
involve future criminal proceedings.
Discussion: The Department proposed Sec. 106.46(f)(4) due to
concerns that
[[Page 33745]]
``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.'' 87 FR 41509.
After carefully considering the comments, the Department agrees with
the many commenters who expressed concerns that proposed Sec.
106.46(f)(4) would have been difficult to implement in practice. The
Department also acknowledges commenters' concerns that proposed Sec.
106.46(f)(4) failed to provide postsecondary institutions and their
decisionmakers with appropriate flexibility to fully implement Title
IX. In light of the commenters' concerns, the Department has revised
Sec. 106.46(f)(4) to provide the decisionmaker with additional
discretion and has removed the language commenters found confusing and
difficult to implement, while still permitting the decisionmaker to
place less weight on statements made by a party or witness who refuses
to respond to questions. Final Sec. 106.46(f)(4) is within the
Department's authority and not inconsistent with the case law because
it is designed to effectuate Title IX's nondiscrimination mandate by
helping ensure that grievance procedures produce fair and reliable
outcomes. Final Sec. 106.46(f)(4) provides postsecondary institutions
with necessary flexibility and discretion to rely on their expertise in
evaluating and weighing evidence while still enabling them to address
situations in which a party or witness attempts to manipulate the
process by presenting inaccurate testimony and refusing to answer
questions that probe at those inaccuracies. This addresses the
potential for manipulation by the parties that the court in Victim
Rights Law Center expressed concern about. See 552 F. Supp. 3d at 132-
33.
In addition, in response to commenters' specific concerns that it
would be difficult to determine which questions are related to
credibility and that whether a question is related to credibility could
differ depending on the context, circumstances, and substance of the
answer, the Department has removed the reference to questions related
to credibility from Sec. 106.46(f)(4) in the final regulations and has
revised this provision to apply to questions in general and not just
those related to credibility.
As many commenters discussed, decisionmakers are regularly tasked
with evaluating and weighing evidence when making determinations as to
whether sex-based harassment occurred. After considering the
commenters' views and proposed alternatives, the Department has decided
that it is not necessary to set out specific regulatory requirements
for when and how a decisionmaker may consider statements made by a
party or witness who refuses to respond to questions related to their
own credibility. Instead, the Department has determined a decisionmaker
must have the flexibility to determine, based on the totality of the
circumstances, the weight to be given, if any, to a statement made by a
party or witness who refuses to respond to questions deemed relevant
and not impermissible, including those related to credibility. The
Department notes that questions posed to a party or witness, and thus
the only questions to which a party or witness might not respond, must
be relevant and not impermissible under Sec. Sec. 106.2 and
106.45(b)(7) and not unclear or harassing under Sec. 106.46(f)(3). The
Department also notes that the final regulations at Sec. 106.45(h)(1)
require the decisionmaker to evaluate all relevant and not otherwise
impermissible evidence for its persuasiveness. The requirement to
evaluate the relevant evidence for its persuasiveness necessarily
includes consideration of the weight or credibility to assign to a
party's or witness's statements. The language in Sec. 106.46(f)(4)
giving the decisionmaker flexibility to decide how to handle statements
made by a party who refuses to respond to relevant and not
impermissible questions applies to situations in which a party or
witness declines to participate entirely in the Title IX grievance
procedures. It also applies to situations in which a party or witness
otherwise participates in the Title IX grievance procedures but
declines to respond to some or all questions. Consistent with the
Department's position in the 2020 amendments, ``statements'' applies to
any statement of a party or witness and ``has its ordinary meaning, but
would not include evidence (such as videos) that do not constitute a
person's intent to make factual assertions, or to the extent that such
evidence does not contain a person's statements.'' 85 FR 30349.
As part of the evaluation and weighing of the evidence, a
decisionmaker could therefore take into account the reasons why a party
or witness refused to answer questions when determining what weight to
assign to that party or witness's statements. For example, the
decisionmaker could consider whether the party or witness intentionally
refused to answer any questions so that earlier statements made by that
party or witness could not be tested during questioning, or whether the
party or witness answered nearly all relevant questions and offered a
reasonable justification for not responding to a small number of
questions. This change will provide postsecondary institutions with
necessary flexibility and discretion to rely on their expertise in
evaluating and weighing evidence in responding to complaints of sex-
based harassment, while still enabling them to address situations in
which a party or witness attempts to manipulate the process by
presenting inaccurate testimony and refusing to answer questions that
probe at those inaccuracies. This additional flexibility may alleviate
commenters' concerns that proposed Sec. 106.46(f)(4) would have
conflicted with some State laws that require a postsecondary
institution to give the complainant the choice as to whether the
complainant wants to repeat their account of the alleged sex-based
harassment because a decisionmaker could take the existence of such a
State law into account in considering the complainant's refusal to
respond to questions.
The Department acknowledges that some commenters questioned why
proposed Sec. 106.46(f)(4) would not apply to witnesses and asked the
Department to apply it to witnesses. The Department has revised the
language in Sec. 106.46(f)(4) based on the determination that it
should apply to witnesses in the same manner it applies to the parties.
The Department acknowledges that some commenters would prefer the
Department not permit a decisionmaker to discount statements made by a
party or witness who does not respond to questions, but as explained
above the Department has concerns that prohibiting a decisionmaker from
determining the amount of weight, if any, to give a statement made by a
party or witness who refuses to respond to questions could lead to
manipulation by the parties. The Department notes that under Sec.
106.46(f)(4) as revised, a decisionmaker may decide, based on the
totality of the circumstances, to give full weight to statements made
by a party or witness who refused to respond to a question, and a
decisionmaker is not required to exclude such statements.
The Department disagrees that Sec. 106.46(f)(4) creates a ban on
testing the credibility of the parties. The final regulations at
Sec. Sec. 106.45(g) and 106.46(f) discuss the processes that a
recipient must have in place to assess credibility, and Sec.
106.46(f)(4) permits a decisionmaker to determine the amount of weight,
if any, to place upon statements made by a party or witness who refuses
to respond to questions. It
[[Page 33746]]
does not prohibit recipients from assessing credibility.
The Department acknowledges that some commenters requested
clarification regarding the phrase ``does not respond to questions
related to their credibility'' and how many questions a party must
refuse to answer and whether refusal to respond to one question was
sufficient. The Department has removed this language in the final
regulations. Although the final regulations discuss a party or witness
who refuses to respond to questions, it is not necessary to define this
phrase or clarify how many questions a party or witness must refuse to
respond to in light of the other revisions made to Sec. 106.46(f)(4).
As explained above, Sec. 106.46(f)(4) as finalized permits a
decisionmaker to determine, based on the totality of the circumstances,
what weight, if any, to give statements made by a party or witness who
refuses to respond to one or more questions. Thus, the decisionmaker
has discretion to consider whether the number of questions the party or
witness refused to respond to should be taken into consideration when
determining the weight to give that party's statements. The
decisionmaker also has discretion to determine whether the party or
witness intentionally refused to respond to questions, or did not
refuse but simply could not recall details for a variety of valid
reasons.
The Department declines to make any substantive revisions to the
language in Sec. 106.46(f)(4) restricting a recipient from drawing
inferences about whether sex-based harassment occurred based solely on
the refusal to answer by a party or witness. The Department notes that
this language is similar to language in the 2020 amendments, see, e.g.,
85 FR 30349 n.1341, and it is appropriate not to permit a postsecondary
institution to draw inferences about whether sex-based harassment
occurred based solely on a party's or witness's refusal to respond to
questions because such a determination must be based on the
decisionmaker's evaluation of all the relevant and not otherwise
impermissible evidence under Sec. 106.46(h). It is not necessary to
change ``whether sex-based harassment occurred'' to ``whether or not
sex-based harassment occurred'' because the current phrasing is
consistent with the terminology used throughout the final regulations
and would include a determination that sex-based harassment did not
occur. The Department disagrees with a commenter that it is never
permissible to draw an inference as to whether sex-based harassment
occurred based on a party's or witness's refusal to respond to
questions. Cf. Baxter, 425 U.S. at 318 (discussing the ``prevailing
rule that the Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in
response to probative evidence offered against them''). To be sure, as
the commenter pointed out, criminal consequences may sometimes follow
from the same conduct that constitutes sex-based harassment, but
whether it would be permissible to draw an adverse inference from a
refusal to respond to such questions in a later criminal trial is
distinct from the issue of whether such an inference is permissible in
Title IX grievance procedures. As already explained above, Title IX
grievance procedures are significantly different from criminal trials
because, among other things, they do not implicate the same degree of
potential infringement on a respondent's liberty and hence do not
require the same protections for respondents. The Department clarifies
that it is impermissible to draw an adverse inference about whether
sex-based harassment occurred based only on a respondent's refusal to
respond to questions, including in situations in which a respondent may
face future criminal proceedings, and thus the Department declines the
commenter's suggestion to remove the term ``solely.''
Regarding specifying when credibility assessments are appropriate,
who should make them, and how to apply them to determine investigation
outcomes, the Department notes that the final regulations at Sec. Sec.
106.45(g) and 106.46(f) discuss the processes that a recipient must
have in place to enable the decisionmaker to assess credibility, and
more specific information regarding processes for assessing credibility
is provided in the preamble section discussing Sec. 106.46(f)(1).
In light of the revisions the Department has made to proposed Sec.
106.46(f)(4) to remove references to credibility and language regarding
statements that support that party's position from the final
regulations, it is not necessary to further clarify those terms.
Changes: The Department has removed the reference to questions
related to credibility from Sec. 106.46(f)(4) and revised this
provision to apply to questions in general and not just those related
to credibility. The Department has also revised Sec. 106.46(f)(4) to
permit a decisionmaker to determine the weight to be given, if any, to
a statement made by a party or witness who refuses to respond to
questions deemed relevant and not impermissible.
11. Section 106.46(g) Live Hearings
Impact of Live Hearings on Parties and Postsecondary Institutions
Comments: Some commenters asserted that the proposed removal of the
live hearing requirement would provide postsecondary institutions with
the flexibility to adopt practices based on their unique environments.
Other commenters stated that the live hearing requirement from the 2020
amendments unnecessarily burdens parties and postsecondary
institutions, especially smaller and less well-resourced postsecondary
institutions. Some commenters noted that making live hearings optional
will enable smaller postsecondary institutions to pursue alternatives
to live hearings that encourage reporting and address fears of
retaliation.
Some commenters supported the proposed removal of the live hearing
requirement because, according to the commenters, live hearings burden
and traumatize complainants and may cause them not to seek support.
Some commenters said that removing the live hearing requirement would
cause less trauma for complainants without impacting parties' due
process rights.
Some commenters stated that a live hearing requirement chills
reporting and explained that complainants may not participate in the
Title IX grievance procedures to avoid public ridicule and exposure of
sensitive information. Some commenters said in-person interaction
between the parties should be avoided.
Other commenters disagreed that the live hearing requirement posed
unreasonable burdens or chilled reporting. One commenter, for example,
stated that the credibility of an allegation should be questioned when
an individual is not willing to make a complaint that will be subject
to the accountability that a live hearing provides.
Discussion: The Department acknowledges the views of some
commenters that removal of the live hearing requirement would provide
flexibility and may increase reporting and thanks postsecondary
institutions for sharing their specific experiences with the
requirements of the 2020 amendments. The Department also understands
that some commenters disagree that live hearings are burdensome and
chill reporting and view live hearings as necessary regardless of any
potential burden they may pose to a postsecondary institution. After
carefully considering the views expressed by the commenters, the
Department maintains the position articulated in the July 2022 NPRM
that
[[Page 33747]]
the relevant case law interpreting Title IX, due process, and
fundamental fairness do not require every postsecondary institution to
hold a live hearing in all sex-based harassment cases as long as the
postsecondary institution provides another live-questioning process.
See 87 FR 41506-07. The Department has determined that the requirements
in the final regulations at Sec. 106.46(g) for the live hearing
process, and Sec. 106.46(f) for the live-questioning process if a
postsecondary institution chooses not to use a live hearing,
appropriately protect the right of all parties to have a meaningful
opportunity to present and respond to allegations of sex-based
harassment. These provisions also protect postsecondary institutions'
interest in grievance procedures that enable the decisionmaker to
determine the facts and that are equitable to the parties. The
Department acknowledges that in-person interaction may be challenging
for parties and notes that even if a postsecondary institution chooses
to use a live hearing, the final regulations at Sec. 106.46(g) permit
a postsecondary institution to conduct the live hearing with the
parties physically present in separate locations, including virtually.
The Department recognizes that before the 2020 amendments
postsecondary institutions used a variety of methods to conduct
investigations and that postsecondary institutions have varying
resources. Without taking a position on the specific investigation
methods described by the commenters, the Department notes that, as
discussed above, the final regulations provide a postsecondary
institution with reasonable options for how to structure its grievance
procedures to ensure they are equitable for the parties while
accommodating each postsecondary institution's administrative
structure, educational community, and the applicable Federal, State, or
local law. The Department also notes that all recipients of Federal
financial assistance from the Department are required to comply with
the final regulations regardless of their resources.
The Department maintains that individuals decline to make a
complaint of sex-based harassment for a variety of reasons and
disagrees with the proposition that declining to make a complaint of
sex-based harassment when a live hearing is required means, as one
commenter alleged, that the credibility of the allegation should be
questioned.
Changes: None.
Due Process and Fairness Considerations
Comments: Some commenters stated that, at the postsecondary level,
live hearings are necessary for due process and fundamental fairness,
arguing that a live hearing with cross examination is valuable when
parties and witnesses are adults. Some of these commenters added that
the rights of the respondent must be balanced with the rights of the
complainant, particularly in light of the harm to the respondent caused
by a wrongful finding, such as expulsion, and further argued that
recipients will not protect respondents' rights on their own.
Some commenters stated that the proposed regulations would lead to
the elimination of live hearings because postsecondary institutions are
more likely to use procedures that are less transparent and accountable
so that, according to the commenters, institutions can let their biases
play out when given flexibility to do so. One commenter stated that
when postsecondary institutions have discretion, they remove procedural
safeguards, which happened with conduct that is not covered under the
definition of ``sexual harassment'' under the 2020 amendments. One
commenter stated that live hearings should be required in cases in
which credibility is at issue so decisionmakers can hear a full and
unbiased presentation of evidence. Some commenters stated that the
proposed removal of the live hearing requirement will foster sex bias
and stereotypes in adjudications. Other commenters stated that it will
also impact the ability to review and respond to evidence, noting that
access to evidence prior to a hearing allows parties to effectively
participate in the proceedings. Some commenters shared personal stories
of bias and other experiences under the Department's guidance that was
in effect before the 2020 amendments.
Discussion: The Department understands that some commenters would
prefer the Department to maintain the requirement for live hearings
with advisor-conducted cross-examination from the 2020 amendments.
Although the Department agrees that some courts have held that
postsecondary institutions must use a live hearing in certain sex-based
harassment cases, after thoroughly considering the views of the
commenters, the Department maintains the position articulated in the
preamble to the 2020 amendments that the Supreme Court has not ruled on
what procedures satisfy due process in the specific context of Title IX
sex-based harassment grievance procedures held by a postsecondary
institution and that what constitutes a meaningful opportunity to be
heard depends on specific circumstances. See 85 FR 30327. As discussed
above, the Department also maintains the position articulated in the
July 2022 NPRM that the relevant case law interpreting Title IX, due
process, and fundamental fairness do not require every postsecondary
institution to hold a live hearing in all cases as long as the
postsecondary institution provides another live-questioning process.
See 87 FR 41506-07. As stated in the July 2022 NPRM, permitting, but
not requiring, postsecondary institutions to use a live hearing for
sex-based harassment complaints provides a postsecondary institution
with reasonable options for how to structure its grievance procedures
to ensure they are equitable for the parties while accommodating each
postsecondary institution's administrative structure, educational
community, and the applicable Federal, State, or local law. See 87 FR
41505.
The Department recognizes the view of some commenters that, if the
final regulations do not require live hearings under Title IX,
postsecondary institutions will eliminate live hearings, and the
concerns expressed by some commenters that, when not required to do so,
a number of postsecondary institutions did not to choose to hold a live
hearing. However, the Department disagrees that this approach will lead
to the elimination of live hearings. As an initial matter, the final
regulations permit a postsecondary institution to use a live hearing
when applicable case law or other sources of law require that approach.
The Department acknowledges that once the final regulations go into
effect some postsecondary institutions, particularly those for which
applicable case law or other sources of law do not require a live
hearing or that have an administrative structure that makes it
difficult to conduct a live hearing, may choose to provide another
live-questioning process instead of a live hearing for some or all
types of sex-based harassment complaints. The goal of the final
regulations is to fully effectuate Title IX's nondiscrimination mandate
and, as explained above, the relevant case law does not support
requiring every postsecondary institution to hold a live hearing as
part of its obligations under Title IX. Nothing in the final
regulations precludes a postsecondary institution from complying with
applicable case law or
[[Page 33748]]
other sources of law regarding live hearings.
The Department acknowledges commenters who stated that a live
hearing is necessary when credibility is at issue so that the
decisionmakers can hear a full and unbiased presentation of evidence
and expressed concern that methods other than live hearings are
inadequate because they may not be objective, rely on investigators who
lack training, or foster stereotypes and bias because they are not
transparent. The Department also acknowledges commenters who shared
personal stories of bias and other experiences prior to the 2020
amendments. The Department notes that the final regulations do not
simply implement prior OCR guidance. They include, for example, more
specific requirements for a recipient's prompt and equitable grievance
procedures and explicitly require training on how to serve impartially,
including by avoiding prejudgment of the facts at issue, conflicts of
interest, and bias. The final regulations, like the 2020 amendments,
require training regarding conflicts of interest and bias, regardless
of whether a live hearing is used. The final regulations at Sec.
106.45(b)(2) prohibit any person designated as a Title IX Coordinator,
investigator, or decisionmaker from having a conflict of interest or
bias for or against complainants or respondents generally or an
individual complainant or respondent. Additionally, Sec. 106.8(d)
requires investigators, decisionmakers, and other persons responsible
for implementing the recipient's grievance procedures to receive
training on a number of topics, including the recipient's grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46 (which
could include training on how to assess credibility under Sec.
106.46(f)); how to serve impartially, including by avoiding prejudgment
of the facts at issue, conflicts of interest, and bias; 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.
Regarding commenters who expressed specific concern that the
removal of the live hearing requirement would lead to bias based on
sex, Sec. 106.31(a)(1) and (b)(4) require that a recipient carry out
its grievance procedures in a nondiscriminatory manner and prohibit a
recipient from discriminating against any party based on sex. In
addition, Sec. 106.45(b)(1) requires a recipient's grievance
procedures to treat complainants and respondents equitably and that
this requirement applies regardless of the sex of the complainant or
respondent. Anyone who believes that a recipient's treatment of a
complainant or respondent constitutes sex discrimination may file a
complaint with OCR, which OCR would evaluate and, if appropriate,
investigate and resolve consistent with the requirement that a
recipient carry out its grievance procedures in a nondiscriminatory
manner. The Department also notes that any person, regardless of sex,
may be a complainant or a respondent, and thus permitting, but not
requiring, a postsecondary institution to use live hearings does not
discriminate based on sex.
In response to commenters who raised concerns that the removal of
the live hearing requirement would limit transparency and negatively
impact the parties' ability to review and respond to the evidence, the
Department notes that the final regulations contain several
requirements regarding accessing evidence, which apply regardless of
whether a live hearing is used and which promote transparency. Section
106.45(f)(4) requires that a recipient provide each party with an equal
opportunity to access the relevant and not otherwise impermissible
evidence or an accurate description of such evidence, as well as a
reasonable opportunity to respond. If the recipient provides a
description of the evidence, it must provide the parties with an equal
opportunity to access the relevant and not otherwise impermissible
evidence upon the request of any party. In addition, Sec.
106.46(e)(6)(i) requires that, for complaints of sex-based harassment
involving a student party at postsecondary institutions, a
postsecondary institution must provide the parties with an equal
opportunity to access either the relevant and not otherwise
impermissible evidence, or the same written investigative report that
accurately summarizes the evidence. If the postsecondary institution
provides access to an investigative report, it must provide the parties
with an equal opportunity to access the relevant and not otherwise
impermissible evidence upon the request of any party.
Changes: None.
Explanation of Removal of Live Hearing Requirement
Comments: Some commenters generally stated that the proposed
removal of the live hearing requirement would be arbitrary and
capricious. Another commenter stated that the Department only focused
on why cross-examination is not necessary but failed to discuss the
costs of removing a requirement to conduct live hearings with cross-
examination, as compared with other methods.
Discussion: The Department disagrees that the removal of the live
hearing requirement is arbitrary and capricious. The Department notes
the extensive discussion in the July 2022 NPRM regarding the proposed
removal of the requirement for live hearings with advisor-conducted
cross-examination. See 87 FR 41503-09. As discussed above, some courts
have held that postsecondary institutions must utilize a live hearing
in certain sex-based harassment cases. However, as the Department
articulated in the preamble to the 2020 amendments, the Supreme Court
has not ruled on what procedures satisfy due process in the specific
context of a postsecondary institution's Title IX sex-based harassment
grievance procedures. What constitutes a meaningful opportunity to be
heard depends on the specific circumstances. See 85 FR 30327. In
addition, as discussed above, the Department maintains the position
articulated in the July 2022 NPRM that the relevant case law
interpreting Title IX, due process, and fundamental fairness does not
require a postsecondary institution to hold a live hearing in all cases
as long as the postsecondary institution provides another live-
questioning process. See 87 FR 41506-07.
The Department maintains that it has adequately addressed any costs
associated with the removal of the live hearing requirements and
references the July 2022 NPRM, which discussed the costs and benefits
of the various proposed changes to the grievance procedure
requirements. See 87 FR 41546-47, 41554-58. For a detailed discussion
of the costs and benefits of these final regulations, see the
Regulatory Impact Analysis section.
Changes: None.
Requiring Live Hearings in Certain Circumstances
Comments: Some commenters stated that a postsecondary institution
should be required to hold a live hearing if requested to do so by
either party. Other commenters urged the Department to require a live
hearing unless both parties knowingly and voluntarily waive the right
to a live hearing by choosing an informal resolution process or if the
postsecondary institution has good cause as to why a live hearing would
be inappropriate and clearly articulates its good cause in writing with
an opportunity for the parties to be heard. Another commenter stated
that live hearings should be required unless a
[[Page 33749]]
complainant requests a single decisionmaker. One commenter stated that
when a postsecondary institution makes live hearings optional, they
should only take place when both parties consent in writing so that
both parties have an equal say in determining the method used for
adjudication. Another commenter asked the Department to require a
postsecondary institution to provide for a live hearing during the
appeals process if new evidence or arguments are offered to the
appellate decisionmaker.
Some commenters stated that live hearings should be required when
there is a possibility of serious or life-altering consequences. One
commenter said that a live hearing should be required for all sex-based
harassment complaints at elementary schools and secondary schools
because it is the best way to assess credibility.
Another commenter asked whether postsecondary institutions that
typically use an administrative decisionmaking process to resolve sex-
based harassment complaints would be permitted to use a live hearing
under extraordinary circumstances.
Discussion: The Department declines to make any changes in response
to suggestions from commenters to require a postsecondary institution
to conduct a live hearing under certain circumstances or for certain
types of complaints. As explained above, a postsecondary institution
should have some degree of latitude to determine how to structure its
grievance procedures to ensure they are equitable for the parties while
accommodating each postsecondary institution's administrative
structure, educational community, and the applicable Federal, State, or
local law. This includes determining whether and under what
circumstances to use a live hearing for sex-based harassment complaints
involving student complainants or student respondents. Regardless of
that discretion, however, postsecondary institutions must provide a
live-questioning process that enables the decisionmaker to assess the
credibility of parties and witnesses to the extent credibility is both
in dispute and relevant to evaluating one or more allegations of sex-
based harassment. In situations in which a recipient chooses not to use
a live hearing, Sec. 106.46(f)(1)(i) allows either the investigator or
the decisionmaker to ask questions of the parties and witnesses during
individual meetings. If the investigator asks the questions of the
parties and witnesses, the decisionmaker would rely on the
investigator's assessment of credibility.
The Department similarly declines to require a postsecondary
institution to provide for a live hearing during the appeals process if
new evidence or arguments are offered to the appellate decisionmaker.
Nothing in the final regulations precludes a postsecondary institution
from doing this 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 maintains that it is appropriate to give
postsecondary institutions the discretion as to whether to use a live
hearing and declines to require live hearings when there is a
possibility of serious or life-altering consequences. The Department
notes that postsecondary institutions might well choose to develop more
formal procedures for disciplinary matters with more significant
consequences, but believes the final regulations--which require an
equal opportunity to access relevant and not otherwise impermissible
evidence, a live-questioning process, and an opportunity for an
appeal--are sufficient to ensure the fairness of grievance procedures.
The Department also declines a commenter's suggestion to require a
live hearing for all sex-based harassment complaints at elementary
schools and secondary schools. Nothing in Sec. 106.45(g), which
governs the process for questioning parties and witnesses at the
elementary school and secondary school level, precludes an elementary
school or secondary school from choosing to utilize a live hearing for
sex-based harassment complaints. However, the Department notes that, as
explained in the preamble to the 2020 amendments, parties under the
grievance process in elementary schools and secondary schools generally
are not adults and lack the developmental ability of adults and the
legal right to pursue their own interests. See 85 FR 30364. If an
elementary school or secondary school chooses to hold a live hearing as
part of its process for questioning parties and witnesses under Sec.
106.45(g), it has discretion as to how to conduct such a hearing
because the live hearing procedures in Sec. 106.46(g) only apply to
sex-based harassment complaints involving a student complainant or
respondent at postsecondary institutions. The Department wants to leave
elementary schools and secondary schools with flexibility to apply live
hearing procedures that fit the needs of their educational environment,
which is consistent with the Department's position on this issue in the
preamble to the 2020 amendments. See 85 FR 30365. For example, if a
recipient chooses to use a live hearing in a proceeding at the
elementary school level, the young ages of the parties and witnesses
involved may warrant limiting the duration of the hearing or ensuring
that parties and witnesses have assistance during questioning.
Regarding commenters' questions as to whether a postsecondary
institution that typically does not hold a live hearing for sex-based
harassment complaints could do so for some cases and whether a
postsecondary institution could decide on a case-by case basis or for
certain categories of cases to hold a live hearing, as explained in the
discussion of Sec. 106.45(b)(8), a postsecondary institution may
choose to use a live hearing for some, but not all, complaints of sex-
based harassment as part of its grievance procedures under Sec.
106.46. As required under Sec. 106.45(b)(8), the postsecondary
institution's written grievance procedures must articulate consistent
principles for how it will determine the types of complaints for which
it will use live hearings (e.g., for complaints in which both parties
are students or complaints for which the maximum sanction is suspension
or expulsion). In addition, a recipient's determination regarding
whether to apply certain procedures to some, but not all, complaints
must be made in a manner that treats complainants and respondents
equitably consistent with Sec. 106.45(b)(1).
The Department declines to require both parties to consent in
writing before a postsecondary institution may use a live hearing
because as explained above, it is appropriate to provide postsecondary
institutions with the flexibility to determine whether and when to use
a live hearing. Nothing in the final regulations precludes a
postsecondary institution from choosing on its own only to use a live
hearing if both parties consent in writing.
Regarding whether certain aspects of the live hearing are optional
and how the removal of the live hearing requirement impacts the live-
questioning process, the Department notes that if a postsecondary
institution chooses to use a live hearing for complaints of sex-based
harassment involving a student, the postsecondary institution must
comply with all of the requirements for a live hearing in Sec.
106.46(g). A detailed discussion of live-questioning procedures,
including the various options a postsecondary institution has for
questioning parties and witnesses to aid in evaluating allegations and
assessing credibility, is in the discussion of Sec. 106.46(f). If the
[[Page 33750]]
postsecondary institution chooses to use a live hearing under Sec.
106.46(g), then it must follow the procedures in Sec.
106.46(f)(1)(ii). Conversely, if the postsecondary institution chooses
not to use a live hearing under Sec. 106.46(g), then it must follow
the procedures in Sec. 106.46(f)(1)(i).
Changes: None.
Live Hearing Logistics
Comments: One commenter supported the option of holding live
hearings virtually because it provides a trauma-informed process for
complainants and allows the process to continue when in-person meetings
are not feasible. Another commenter asked the Department to issue
guidance on virtual live hearings. One commenter supported the
requirement that recipients hold live hearings virtually upon the
request of any party, but asked the Department to change ``will'' in
proposed Sec. 106.46(g) to ``must'' for clarity. One commenter asked
the Department to state that the postsecondary institution must ensure
both parties have equal opportunity to speak and listen in a hybrid
live hearing, when one person testifies in person and the other
remotely. Some commenters, however, stated that telephonic or virtual
testimony hinders the ability to assess witness demeanor and requested
that the Department require in-person testimony.
Some commenters expressed concern that the phrase ``or
communicating in another format'' is unclear because although the
language likely permits an alternative form of communication to
accommodate a disability, individuals without a disability could claim
the right to communicate in another format, such as typing in a chat
instead of speaking. Other commenters encouraged the Department to
ensure that hearings and questioning are trauma-informed, which the
Department understood to mean that it would ensure that individuals
conducting the hearing would be required or trained to take into
consideration the signs and symptoms of trauma and take steps to avoid
re-traumatizing individuals participating in the hearing.
Discussion: The Department appreciates the varying views expressed
by commenters regarding holding live hearings with the parties
physically present in the same geographic location or with the parties
physically present in separate locations, including virtual
participation. The Department declines to issue any additional guidance
at this time regarding conducting live hearings virtually but clarifies
that nothing in Sec. 106.46(g) requires the parties to be physically
present at the same location for a live hearing. Section 106.46(g)
permits a postsecondary institution to allow any party to participate
in the live hearing virtually as long as the decisionmaker and parties
can simultaneously see and hear the party or witness while that party
is speaking. The Department maintains that it is necessary to revise
Sec. 106.46(g) to require a postsecondary institution to ensure both
parties have equal opportunity to speak and listen in a hybrid live
hearing when one person testifies in person and the other remotely and
notes that the final regulations at Sec. 106.45(b)(1) require a
recipient's grievance procedures to treat the parties equitably.
The Department agrees with the commenter's suggestion to change
``will'' to ``must'' to clarify that upon the request of either party,
the postsecondary institution must conduct the live hearing with the
parties physically present in separate locations (which can be virtual)
and the Department has revised the regulatory text accordingly.
The Department acknowledges the view of the commenters that
telephonic or virtual testimony may hinder the ability to assess
witness demeanor but declines to make any changes to require in-person
testimony at a live hearing. The Department notes that Sec. 106.46(g)
only permits the parties to participate virtually if the decisionmaker
and parties can simultaneously see and hear the party or witness while
that party is speaking; thus, telephonic testimony without video is not
permitted. The Department maintains the position in the preamble to the
2020 amendments that any minimal reduction in the ability to assess
demeanor by the use of technology is justified by the benefits of
shielding a complainant from testifying in the presence of a
respondent. See 85 FR 30355-56.
The Department agrees the proposed Sec. 106.46(g) was potentially
unclear as to when a person would be allowed to ``communicat[e] in
another format.'' The Department's intent was that a person would be
allowed to do so only when necessary to accommodate a disability that
required communication in a format other than speaking. Upon further
consideration, the Department has determined that it is not necessary
to include this language in the regulatory text. The Department
reiterates the position from the preamble to the 2020 amendments, 85 FR
30498, and elsewhere in this preamble that recipients' obligations to
comply with these final regulations and with disability laws applies to
all aspects of responding to sex discrimination under Title IX,
including throughout the grievance procedures in Sec. 106.45, and if
applicable Sec. 106.46. Compliance with disability laws may require a
postsecondary institution to permit a person with a disability to use
an alternative form of communication during a live hearing. Persons who
do not require an accommodation for a disability or auxiliary aid or
service would be required to speak during the hearing, as opposed to
communicating through a method such as typing in a chat, as suggested
by the commenter. For additional information regarding students with
disabilities who are complainants or respondents in Title IX grievance
procedures, see the discussion of Sec. 106.8(e).
The Department declines to require recipients to ensure that
hearings and questioning are trauma-informed because recipients that
sufficiently train their investigators, decisionmakers, and other
persons who are responsible for implementing the recipient's grievance
procedures, as required by Sec. 106.8(d)(2), will be able to implement
the recipients' grievance procedures in ways that treat complainants
and respondents respectfully and fairly, and that imposing specific
trauma-informed obligations would interfere with recipients' need for
flexibility in tailoring their training for their educational
community. The Department notes that, consistent with the Department's
position explained in the preamble to the 2020 amendments, a recipient
has discretion to use a trauma-informed approach in handling sex
discrimination complaints as long as the approach complies with the
requirements in the final regulations, including the grievance
procedure requirements in Sec. 106.45, and if applicable Sec. 106.46.
See 85 FR 30323.
Changes: The Department has revised Sec. 106.46(g) by replacing
``will'' with ``must'' so that upon the request of either party the
postsecondary institution must conduct the live hearing with the
parties physically present in separate locations, and by removing the
phrase ``or communicating in another format.''
12. Section 106.46(h) Determination Whether Sex-Based Harassment
Occurred
Comments: Commenters expressed a variety of views on proposed Sec.
106.46(h). For example, one commenter supported proposed Sec.
106.46(h) because it would require recipients to notify both
complainants and respondents of sanctions. The commenter stated such
information is necessary for the complainant to feel
[[Page 33751]]
safe returning to school. Another commenter supported proposed Sec.
106.46(h) because it would help parties to understand a recipient's
determination, allow a party to appeal, and help the judiciary to
evaluate whether recipients handled cases appropriately.
Some commenters opposed proposed Sec. 106.46(h) because, for
example, they preferred the 2020 amendments or believed proposed Sec.
106.46(h) was too vague in describing the information required in a
written determination. One commenter also expressed concern that
recipients would be able to find students responsible for sex-based
harassment without demonstrating any violation of a recipient's code of
conduct. Other commenters opposed proposed Sec. 106.46(h) because it
would not require the written determination to include an analysis of
credibility.
One commenter requested that proposed Sec. 106.46(h) be modified
to apply to all complaints of sex discrimination. Another commenter
requested proposed Sec. 106.46(h) include a requirement that the
written determination expressly identify which elements of the
allegations were found by the standard of proof and which were not.
One commenter requested clarification of whether ``simultaneously''
would mean ``without undue delay between notifications.'' Another
commenter requested clarification whether recipients must separately
inform a complainant of ``any'' remedies they will receive, not just
``whether'' they will receive remedies.
Discussion: The Department disagrees that Sec. 106.46(h) is too
vague in describing the information required in a written
determination. Section 106.46(h) mandates that a written determination
must include certain key elements so that the parties have a thorough
understanding of the investigative process and information considered
by the recipient in reaching conclusions. See 87 FR 41511. Section
106.46(h) provides for a written determination adequate for the purpose
of an appeal or judicial proceeding reviewing the determination
regarding responsibility. The Department also disagrees that references
to ``sex-based harassment'' within Sec. 106.46(h) are not sufficiently
precise. ``Sex-based harassment'' is a defined term under these
regulations and can be understood to include all conduct in the
definition in Sec. 106.2.
The Department declines to modify Sec. 106.46(h) to apply to all
complaints of sex discrimination. Section Sec. 106.45(h)(2), which
applies to all complaints of sex discrimination for all recipients,
including elementary schools and secondary schools, provides for
notification in writing of the determination whether sex discrimination
occurred under Title IX, including the rationale for this
determination. Section 106.46(h), on the other hand, contains
additional requirements that apply only to complaints of sex-based
harassment involving a student party at a postsecondary institution.
Because the allegations, evidence, and disciplinary sanctions in sex-
based harassment cases at postsecondary institutions are often more
extensive and complex than other forms of complaints of sex
discrimination, it is appropriate to require notifications about the
determination whether sex-based harassment occurred to provide
additional details, including a written explanation of how the evidence
was evaluated and how the harassment, if any, will be disciplined. A
detailed notification, in writing, also helps all parties understand
how these often-complex cases have been resolved.
The Department also declines to require recipients to identify a
violation of a recipient's code of conduct in a written determination.
Recipients retain discretion to refer in the written determination to
any provision of the recipient's own code of conduct that prohibits
conduct meeting the Sec. 106.2 definition of ``sex-based harassment,''
but Sec. 106.46(h) helps ensure that these final regulations are
understood to apply to a recipient's response to sex-based harassment
under Title IX and not to apply to a recipient's response to non-Title
IX types of misconduct. The Department likewise declines to expressly
require a written determination to include an analysis of credibility
or identify which elements of the allegations were found by the
standard of proof and which were not. The Department notes that to the
extent that a credibility analysis is relevant to a decisionmaker's
evaluation of the relevant evidence and determination whether sex-based
harassment occurred, it would be included in the written determination
under Sec. 106.46(h)(1)(iii). The Department also declines to specify
the exact types of sanctions that may be imposed in a written
determination under Sec. 106.46(h) because recipients have the
flexibility to determine disciplinary sanctions, as appropriate,
consistent with these final regulations. The Department notes that any
disciplinary sanctions imposed would need to be consistent with the
definition of ``disciplinary sanctions'' and otherwise comply with the
requirements in these final regulations.
The Department appreciates the opportunity to clarify that the term
``simultaneously'' in Sec. 106.46(h) should be interpreted in
accordance with its plain meaning. The Department understands
``simultaneously'' to ordinarily mean ``at the same time.'' See
Simultaneous, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/simultaneous (last visited Mar. 12, 2024). The
Department declines to adopt the commenter's suggestion that
simultaneously might mean ``without undue delay between
notifications,'' but the Department would not conclude a recipient
failed to comply with Title IX because of a de minimis delay in
notifications, such as a delay of a few minutes when sending email
notifications to the parties. The Department also appreciates the
opportunity to clarify that Sec. 106.46(h) does not require a
recipient to provide information about the particular remedies offered
in the written determination, only whether remedies will be provided,
to protect the privacy of the complainant while preserving the overall
fairness of giving both parties identical copies of the written
determination simultaneously. Section Sec. 106.45(h)(3) provides that
the Title IX Coordinator is responsible for coordinating the provision
and implementation of remedies and, when a written determination states
that remedies will be provided, the party receiving such remedies can
then communicate separately with the Title IX Coordinator to discuss
what remedies are appropriately designed to preserve or restore access
to the recipient's education program or activity.
Finally, for consistency with other provisions in the regulations,
the Department has revised Sec. 106.46(h)(1)(iii) to clarify that a
written determination from a postsecondary institution whether sex-
based harassment occurred must include the decisionmaker's evaluation
of the evidence that is ``relevant and not otherwise impermissible,''
and replaced ``the appeal, if an appeal is filed, or, if an appeal is
not filed,'' with ``any appeal, or if no party appeals,'' in Sec.
106.46(h)(2) for clarity and consistency with other provisions. The
Department has also deleted ``of'' before ``whether'' for consistency
with the other provisions in the final regulations.
Changes: In Sec. 106.46(h)(1)(iii), the Department has added the
words ``and not otherwise impermissible'' after the word ``relevant.''
In Sec. 106.46(h) and
[[Page 33752]]
(h)(1)(iii), the Department has deleted ``of.'' In Sec. 106.46(h)(2),
the Department has replaced ``the appeal, if an appeal is filed, or, if
an appeal is not filed'' with ``any appeal, or, if no party
appeals[.]''
13. Section 106.46(i) Appeals
General Support and Opposition
Comments: Some commenters supported Sec. 106.46(i) because it
would outline the bases upon which an appeal must be offered and
provide a recipient discretion to grant an appeal on an additional
basis if equally available to the parties.
However, other commenters objected to Sec. 106.46(i)(1) based on
their interpretation that it would only require a recipient to offer a
respondent an appeal from a determination that sex-based harassment did
occur, while imposing no such requirement to offer a complainant an
appeal from a determination that sex-based harassment did not occur.
These commenters asserted that such a provision would be inconsistent
with requirements to resolve complaints in an ``equitable'' manner in
Sec. 106.45(b)(1) and to ensure that any additional bases for appeal
are equally available to all parties in Sec. 106.46(i)(2).
In contrast, other commenters disagreed with allowing a complainant
to appeal a determination that sex-based harassment did not occur,
although one commenter acknowledged that the Clery Act requires a
recipient to offer equivalent appellate rights to both parties. Some
commenters asserted that allowing a complainant to appeal a dismissal
or determination that sex-based harassment did not occur disfavors
respondents.
One commenter challenged the Department's assertion that Sec.
106.46(i) is not a departure from the appeals provision in the 2020
amendments because the proposed regulations would require a party to
show that one of the bases for appeal would ``change,'' rather than
``affect,'' the outcome of the complaint. The commenter asserted that
the Department failed to justify this proposed change, which would make
it nearly impossible to successfully appeal a decision. Another
commenter suggested replacing ``change'' with ``impact'' throughout
Sec. 106.46(i)(1)(i)-(iii) because, in the commenter's view, it would
more accurately describe the Department's intent in outlining the bases
for appeal.
One commenter asked how the requirement to offer an appeal would
interact with State laws that require an elementary school or secondary
school to hold an expulsion hearing within 30 school days after the
recipient determines that a student has engaged in sexual harassment.
The commenter also suggested that the ability of a student complainant
or respondent to file an OCR complaint would provide an adequate appeal
process such that the Department could delete the requirement that a
recipient offer an appeal from a determination whether sex-based
harassment occurred.
Discussion: The Department acknowledges the comments on Sec.
106.46(i) and clarifies language in the proposed regulations that might
have been misinterpreted as only requiring a recipient to offer an
appeal to a respondent from a determination that sex-based harassment
did occur. As discussed in the July 2022 NPRM, Sec. 106.46(i)
preserves Sec. 106.45(b)(8) of the 2020 amendments, 87 FR 41511, which
requires a recipient to ``offer both parties an appeal from a
determination regarding responsibility, and from a recipient's
dismissal of'' a complaint based on procedural irregularity; new
evidence that was not reasonably available at the time of the
determination; or Title IX Coordinator, investigator, or decisionmaker
bias or conflict of interest. See 34 CFR 106.45(b)(8). Accordingly, the
final regulations contain a technical revision at Sec. 106.46(i) to
clarify that a postsecondary institution must offer the parties an
appeal from a determination whether sex-based harassment occurred and
from a postsecondary institution's dismissal of a complaint or any
allegations therein.
As noted in the preamble to the 2020 amendments, requiring a
postsecondary institution to offer an appeal equally to the parties
will make it more likely that a recipient reaches sound determinations
in sex-based harassment complaints, which will give complainants and
respondents greater confidence in the final outcome of grievance
procedures. 85 FR 30396. Additionally, the Department disagrees that
requiring a recipient to offer an appeal on an equal basis to the
parties disfavors a respondent because both a complainant and a
respondent have important interests in the outcome of a sex-based
harassment complaint that can affect either party's ability to access
educational opportunities. The complainant's interest is whether any
sex-based harassment that occurred will be remedied and its recurrence
prevented. At the same time, the respondent has an interest in not
being subjected to undue disciplinary sanctions. Although these
interests may differ, each represents high-stakes, potentially life-
altering consequences deserving of an accurate outcome. Univ. of
Cincinnati, 872 F.3d at 404 (recognizing that the complainant
``deserves a reliable, accurate outcome as much as'' the respondent).
Also, as commenters noted, Sec. 106.46(i) is consistent with the Clery
Act requirement that a postsecondary institution equally offer the
parties an appeal from the result of disciplinary proceedings if such
procedures are available. See 34 CFR 668.46(k)(2)(v)(B).
Further, the Department disagrees with assertions that allowing a
complainant to appeal a determination that sex-based harassment did not
occur disfavors the respondent. As stated in the preamble to the 2020
amendments, Title IX grievance procedures differ in purpose and
procedure from a criminal proceeding, 85 FR 30397, and in any event,
the Department is not persuaded that a complainant's ability to appeal
an adverse determination results in ``double jeopardy.'' The Department
acknowledges that respondents face a burden if a complainant appeals a
determination that sex-based harassment did not occur, but we maintain
that it is important for a postsecondary institution to review a
determination that was reached via alleged procedural irregularity,
bias, or conflict of interest affecting the outcome, or when newly
discovered evidence may change the outcome. As noted above, the ability
to appeal extends equally to complainants and respondents who would
each have the right and opportunity to ask for a redetermination if
warranted. Additionally, several commenters--including State
legislators, Title IX practitioners, and organizations that combat
sexual violence--supported the bases for which an appeal must be
offered under Sec. 106.46(i)(1).
Despite some commenters' assertions, using the term ``change'' from
proposed Sec. 106.46(i), the term ``affect'' from the 2020 amendments,
or the term ``impact'' from one commenter's suggestion would not have
any substantive effect on how Sec. 106.46(i) is applied.\75\
Nonetheless, of the three terms, ``change'' is most consistent with
directives that Federal agencies ensure that regulations are written in
plain language and easy to understand. See, e.g., Exec. Order No.
13563. Further, because using the term ``change'' rather than
``affect'' does not
[[Page 33753]]
substantively alter the regulations, the Department disagrees with the
commenter's assertion that using the word ``change'' would make it
``impossible'' to appeal an adverse decision.
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\75\ Compare Change, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/change (last visited Mar. 12,
2024), with Affect, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/affect (last visited Mar. 12, 2024), and
Impact, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/impact (last visited Mar. 12, 2024).
---------------------------------------------------------------------------
Additionally, in response to one commenter expressing concern with
the requirement to offer an appeal while referencing State law that
appears to govern disciplinary proceedings for elementary schools and
secondary schools, the Department wishes to clarify that only a
postsecondary institution that receives a complaint of sex-based
harassment involving a student party must offer the parties an appeal
consistent with Sec. 106.46(i). Further, it is the Department's view
that an elementary school or secondary school will be able to comply
with Sec. 106.45(i), which is the applicable provision governing
appeals for complaints of sex discrimination at the elementary school
and secondary school levels, while meeting its separate obligations
under State law governing student discipline because a recipient is
only required to offer the parties an appeal process that, at a
minimum, is the same as it offers in comparable proceedings, if any,
including proceedings relating to other discrimination complaints. The
Department recognizes that many States have laws that address sex
discrimination, including sex-based harassment, and other misconduct
that negatively impacts students' access to equal educational
opportunities. Nothing in these final regulations precludes a State, or
an individual recipient, from continuing to address such matters in a
manner that also complies with these final regulations.
The Department declines to remove requirements related to appeals
from the final regulations because offering the opportunity to appeal a
determination on the bases in Sec. 106.46(i)(1) enables a recipient to
correct significant issues that could undermine the impartiality and
reliability of grievance procedures and reduces a party's reliance on
OCR or private litigation to challenge the outcomes. As a result, as
discussed in the preamble to the 2020 amendments, offering the
opportunity to appeal can potentially yield just outcomes more
efficiently than a process outside the recipient's grievance
procedures. See 85 FR 30398. The same reasoning applies to a
recipient's dismissal of a complaint, or allegations therein; when a
recipient's dismissal is in error, the parties should have the
opportunity to challenge the recipient's dismissal decision so that the
recipient may correct the error and avoid inaccurately dismissing a
complaint that needs to be resolved in order to identify and remedy sex
discrimination. See id.
Changes: The Department has revised final Sec. 106.46(i)(1) to
clarify that a postsecondary institution must offer the parties an
appeal from a determination whether sex-based harassment occurred, and
from a postsecondary institution's dismissal of a complaint or any
allegations therein. Additionally, the Department has revised final
Sec. 106.46(i)(2)-(3) for clarity and to update cross references to
other parts of these final regulations.
Request To Add or Modify Bases for Appeal
Comments: Some commenters objected to the absence of certain bases
for appeal, including not requiring a recipient to offer an appeal for
simple error or a determination being against the weight of the
evidence, and asserted that case law supports requiring a recipient to
offer an appeal on these bases. Other commenters asked whether the
proposed regulations would limit the bases for appeals to just those
enumerated under Sec. 106.46(i) or allow appeals to challenge parts of
the recipient's determination, such as the appropriateness of a
sanction or remedy.
One commenter suggested the Department outline a procedure for
appeal to ensure fair and consistent appeals.
Discussion: The Department declines to add additional bases for
which a postsecondary institution must offer an appeal under Sec.
106.46(i) because the requirement to offer an appeal based on
procedural irregularity, new evidence, and bias or conflict of interest
balances the interest a party has in reviewing a recipient's
determination and ensuring sex-based harassment does not continue or
recur with a recipient's interest in having discretion to design and
implement grievance procedures that are appropriate for its education
program or activity. As explained in the preamble to the 2020
amendments, the Department selected these three bases for which a
recipient must offer an appeal because each basis represents an error
that, if left uncorrected by the recipient, indicates that the
determination may be inaccurate, and thus that sex-based harassment in
the recipient's education program or activity has not been identified
and appropriately addressed. 85 FR 30398. At the same time, the
Department recognizes the importance of granting a recipient
flexibility and discretion in designing and implementing grievance
procedures that are otherwise consistent with Sec. 106.45, and if
applicable Sec. 106.46. Recipients are better positioned in these
circumstances to know the unique needs and values of their educational
communities. Accordingly, Sec. Sec. 106.45(i)-(j) and 106.46(i)(2)
provide a recipient the discretion to offer an appeal on additional
bases, which may include the opportunity to appeal a remedy or
sanction. If a recipient decides to offer an appeal on additional
bases, then both the complainant and respondent must have the
opportunity to appeal on the same bases. As stated in the preamble to
the 2020 amendments, it would be unfair and run counter to the spirit
of Title IX to permit complainants to appeal a sanction but not permit
respondents to appeal a sanction, and vice versa. As a result, if a
recipient allows appeals on the basis of severity of sanctions, that
appeal must be offered equally to both parties. 85 FR 30399.
The Department similarly declines to require a postsecondary
institution to offer an appeal on the basis of simple error or a
determination being clearly erroneous or against the weight of the
evidence. First, the Department is unpersuaded by arguments that the
authorization of the single investigator model necessitates an appeal
on such a basis because final Sec. 106.45(d)(3)(iii) requires a
recipient to ensure that the decisionmaker for the appeal did not take
part in an investigation of the allegations or the dismissal of the
complaint. This requirement from Sec. 106.45 is incorporated by Sec.
106.46(a) for an appeal under Sec. 106.46(i). As such, the
decisionmaker for an appeal arising out of a sex-based harassment
complaint involving a postsecondary student cannot be the same person
who investigated or dismissed the complaint, which ensures that the
recipient's appeal decisionmaker reviews the underlying case
independently. Additionally, final Sec. 106.45(b)(2) requires an
appeal decisionmaker to be free from bias and conflicts of interest,
and Sec. 106.8(d)(2)(iii) requires an appeal decisionmaker to be
trained to serve impartially.
Second, the appellate cases cited by commenters do not hold that a
recipient must offer an appeal on the bases of simple error,\76\ clear
error, or a determination being against the weight of the evidence.
Rather, those cases indicate that a decision being against the weight
of the evidence can support an inference of bias in the implementation
of a recipient's Title IX procedures. See Oberlin Coll., 963 F.3d at
586-88 (explaining that ``the merits of
[[Page 33754]]
the decision itself'' can ``support an inference of sex bias''); Doe v.
Univ. of S. Ind., 43 F.4th 784, 799 (7th Cir. 2022) (``In a
sufficiently lopsided Title IX case, . . . an erroneous outcome can
support an inference of gender bias.''); Doe v. Tex. Christian Univ.,
601 F. Supp. 3d 78, 89 (N.D. Tex. 2022) (``missteps running `against
the substantial weight of the evidence' are at least some indication of
bias'' (quoting Univ. of Ark.-Fayetteville, 974 F.3d at 864)). The
Department's final regulations at Sec. 106.46(i)(1)(iii) allow a party
to appeal on the basis of decisionmaker bias, and an appeal under the
final regulations can thus take into account whether a decision was
against the weight of the evidence as part of a party's assertion of
bias. Accordingly, a party would be able to appeal on the basis of
decisionmaker bias in the hypotheticals posed by one commenter.
---------------------------------------------------------------------------
\76\ The cases cited by commenters did not discuss the meaning
of ``simple error.''
---------------------------------------------------------------------------
The Department also declines to modify Sec. 106.46(i)(1)(ii) to
prohibit a party from withholding evidence because the provision
already specifies that new evidence must not have been reasonably
available at the time the determination or dismissal was made.
Accordingly, Sec. 106.46(i)(1)(ii) already adequately guards against a
party inappropriately withholding evidence during an investigation to
present on appeal. Further, because the final regulations contemplate
that not every recipient will include a live hearing in its grievance
procedures under Sec. 106.46, the commenter's suggestion to deem any
evidence not presented during the investigation as forfeited during the
hearing could be inapplicable for many recipients, as well as overly
restrictive for recipients that do require a live hearing.
For similar reasons, the Department declines to use the word
``adjudication'' rather than ``determination'' in Sec.
106.46(i)(1)(i)-(ii). The commenter who suggested this change appeared
to assume that an ``adjudication'' would be synonymous with a
``hearing.'' Making the suggested change with that understanding of the
term ``adjudication,'' however, would result in an inconsistency with
Sec. 106.46(g) by implying that a live hearing is required.
The Department also declines to remove the reference to ``Title IX
Coordinator'' and ``investigator'' from Sec. 106.46(i)(1)(iii)
because, as the commenter acknowledged, bias or a conflict of interest
on behalf of the Title IX Coordinator or investigator may not always
result in a procedural irregularity, and providing the parties the
opportunity to appeal based on Title IX Coordinator or investigator
bias or conflict of interest will help ensure accuracy in a recipient's
grievance procedures, which will serve Title IX's goal of identifying
sex discrimination, remedying its effects, and preventing its
recurrence.
Additionally, the Department declines to offer more specific
guidance at this time on what a recipient's appeal procedures should
entail. How a recipient implements its appeal procedures could depend
on a variety of factors, including a party's basis for requesting an
appeal and whether the recipient offers an appeal on additional bases.
Regardless of how a recipient structures its appeal procedures,
however, those procedures must treat complainants and respondents
equitably, in accordance with Sec. 106.45(b)(1). The Department
understands that supporting recipients in the implementation of these
regulations and ensuring that students know their rights is important.
The Department will offer technical assistance, as appropriate, to
promote compliance with these final regulations.
Finally, based on its own review, the Department has deleted
references to ``the matter'' and made other revisions to Sec.
106.46(i)(1)(i)-(iii) for clarity and consistency with other parts of
the final regulations.
Changes: The Department has deleted references to ``the matter''
and made other revisions to Sec. 106.46(i)(1)(i)-(iii) for clarity and
consistency with other parts of the final regulations.
14. Section 106.46(j) Informal Resolution
Comments: Some commenters expressed general support for proposed
Sec. 106.46(j). Other commenters opposed proposed Sec. 106.46(j)
because they believed it would exceed the Department's authority and be
inconsistent with Title IX and established case law, but did not
elaborate on their reasoning. Commenters also objected to a recipient
having the choice not to offer informal resolution.
Discussion: The Department disagrees that Sec. 106.46(j) exceeds
the Department's authority. Congress has authorized the Department to
issue regulations to effectuate Title IX's prohibition on sex
discrimination in education programs or activities that receive Federal
financial assistance consistent with achievement of the objectives of
the statute. See 20 U.S.C. 1682. For further explanation of the
Department's authority to promulgate and enforce regulations related to
grievance procedures requirements, see the discussion of Sec. Sec.
106.45(a)(1) and 106.46(a). Comments related to a recipient's
discretion to offer informal resolution are addressed in the discussion
of Sec. 106.44(k) in this preamble.
Changes: None.
F. Assistant Secretary Review
1. Section 106.47 Assistant Secretary Review
Comments: Commenters generally supported proposed Sec. 106.47.
Some commenters, however, asked the Department to require students to
give OCR notice when a lawsuit is filed against a postsecondary
institution and suggested that OCR conduct a review before or after a
lawsuit is resolved to determine whether the postsecondary institution
handled the matter appropriately.
One commenter asked the Department to clarify that, for Title IX
erroneous outcome claims, the Assistant Secretary should be able to
question whether a recipient reached an erroneous determination because
the recipient was unlawfully discriminating on the basis of sex by, for
example, favoring male over female complainants or vice versa.
Discussion: The Department agrees that Sec. 106.47 will promote
clarity and flexibility for recipients by confirming that OCR will not
substitute its judgment for the judgment of the recipient's
decisionmaker and that recipients have the flexibility to make their
own determinations regarding the appropriate weighing of relevant and
not otherwise impermissible evidence. The Department recognizes that a
student may file a private Title IX lawsuit against a postsecondary
institution. Such a lawsuit is separate from OCR's administrative
enforcement authority under Title IX, and the Department declines in
this rulemaking to require students to notify OCR when a lawsuit is
filed against a postsecondary institution or to require OCR to review
private Title IX lawsuits to determine whether a postsecondary
institution complied with Title IX. The Department will enforce the
final regulations consistent with its authority under 20 U.S.C. 1682
and the procedures in 34 CFR 100.7-11 (incorporated through 34 CFR
106.81). Anyone who believes a recipient of Department funds has
violated Title IX may file a complaint with OCR.
The Department clarifies that Sec. 106.47 applies only to
determinations regarding whether sex-based harassment occurred under
Sec. 106.45, and if applicable Sec. 106.46. The Department maintains
the position taken in the preamble to the 2020 amendments that the
intent of Sec. 106.47 is to convey that OCR will not
[[Page 33755]]
substitute its judgment for the judgment of the recipient's
decisionmaker regarding the weighing of relevant and not otherwise
impermissible evidence in a particular case. See 85 FR 30221. Nothing
in Sec. 106.47 prevents OCR from holding a recipient accountable for
noncompliance with any provision of the Department's Title IX
regulations, including Sec. 106.31(a) and (b)(4), which require that a
recipient carry out its grievance procedures in a nondiscriminatory
manner and prohibit a recipient from discriminating against any party
based on sex.
Changes: The Department has revised Sec. 106.47 to specify that
the provision covers a determination made by a recipient in a
particular complaint alleging sex-based harassment. The Department has
also revised Sec. 106.47 to clarify that the provision applies to
situations in which the Assistant Secretary for Civil Rights would have
reached a different determination than the recipient.
III. Pregnancy and Parental Status
A. Revised Definitions
1. Section 106.2 Definition of ``Pregnancy or Related Conditions''
General Scope of Coverage
Comments: Some commenters supported the proposed definition of
``pregnancy or related conditions'' in Sec. 106.2 for reasons
including that it will help remove barriers to educational access for
all students who are pregnant or experiencing pregnancy-related
conditions and address perceived gaps in the current regulations. Some
commenters emphasized the importance of coverage for lactation in the
proposed definition in Sec. 106.2, noting this coverage's consistency
with similar protections in the Pregnancy Discrimination Act of 1978,
42 U.S.C. 2000e(k) (PDA), the Patient Protection and Affordable Care
Act, 42 U.S.C. 18001 et seq. (ACA), and the Fair Labor Standards Act of
1938, 29 U.S.C. 201 et seq. (FLSA).
Some commenters urged the Department to clarify the proposed
definition covers a variety of pregnancy-related medical conditions and
types of recoveries. Some commenters asked the Department to explain
that a related condition within the definition of ``pregnancy or
related conditions'' under Sec. 106.2 need not qualify as a disability
under the ADA to fit the Title IX definition of pregnancy-related
conditions under Sec. 106.2 or to qualify for a reasonable
modification under Sec. 106.40(b)(3)(ii). Some commenters asked that
the final regulations use terminology that protects all students,
employees, and applicants for admission or employment from sex
discrimination based on pregnancy or related conditions.
Some commenters urged the Department to include ``perceived'' and
``expected'' pregnancy or related conditions in the definition of
``pregnancy or related conditions'' to prevent discrimination against
students seeking fertility care, planning to become pregnant, or who
have the potential to become pregnant. One commenter asked that the
Department clarify what ``potential'' pregnancy or related conditions
means in proposed Sec. 106.40(b)(1) as applied to the elementary
school and secondary school settings.
Some commenters requested an explanation of the Department's
proposed change from the phrase ``pregnancy and related conditions''
that is used in the title of current Sec. 106.40(b) to ``pregnancy or
related conditions'' in the proposed definition in Sec. 106.2.
Some commenters asserted the Department's proposed definition was
unnecessary.
Discussion: As discussed in the July 2022 NPRM, see 87 FR 41534,
and in the discussion of Sec. 106.10, the definition of ``pregnancy or
related conditions'' builds on the longstanding prohibition on
discrimination based on ``pregnancy, childbirth, false pregnancy,
termination of pregnancy or recovery'' that has existed since the Title
IX regulations were first promulgated in 1975, see 40 FR 24128
(codified at 45 CFR 86.21(c)(2), 86.40(b)(2), 86.57(b) (1975)); 34 CFR
106.21(c), 106.41(b)(1), 106.57(b) (current). Since 1975, the
Department has also been clear that recipients cannot discriminate
based on these conditions and gained experience and further
understanding about what standards are necessary and appropriate to
provide students and employees the ability to learn and work while
pregnant or experiencing pregnancy-related conditions. See 87 FR 41513.
Based on the Department's longstanding interpretations and enforcement
activities as well as information from commenters, stakeholders who
spoke at the June 2021 Title IX Public Hearing, and the development of
related laws and case law in this area detailed in the July 2022 NPRM,
the revised definition of ``pregnancy or related conditions'' in the
final regulations is necessary to carry out Title IX's
nondiscrimination mandate. See 87 FR 41513-16.
Accordingly, the final definition of ``pregnancy or related
conditions'' includes pregnancy, childbirth, termination of pregnancy,
and lactation, and all related medical conditions and recovery. The
definition includes the full spectrum of processes and events connected
with pregnancy. For many, needs related to pregnancy, childbirth,
termination of pregnancy, lactation, recovery, and related medical
conditions will be highly intertwined, and in many cases inseparable.
To emphasize the scope of the definition and to add clarity, the
Department is also deleting the word ``their'' from the definition, so
the reference to recovery reads ``[r]ecovery from pregnancy,
childbirth, termination of pregnancy, lactation, or related medical
conditions.''
The Department agrees with commenters that including ``lactation''
in the definition of ``pregnancy or related conditions'' is consistent
with Title IX's goal of eliminating discrimination on the basis of sex
in education. As explained in the July 2022 NPRM, ``it is undisputed
that lactation is a physiological result of being pregnant and bearing
a child[.]'' 87 FR 41514 (internal citations omitted). The Department
also agrees the definition more closely aligns with obligations under
other statutes,\77\ such as the PDA and the Providing Urgent Maternal
Protections for Nursing Mothers Act (PUMP Act), 29 U.S.C. 218d.\78\
---------------------------------------------------------------------------
\77\ The Department notes that the ACA requirement to provide
most non-exempt employees with reasonable break time and space to
pump (incorporated into the FLSA, 29 U.S.C. 207(r)), has since been
replaced by the PUMP Act (also incorporated into the FLSA, 29 U.S.C.
218d), which provides similar protections to most exempt employees
as well.
\78\ See, e.g., Hicks v. City of Tuscaloosa, 870 F.3d 1253, 1259
(11th Cir. 2017) (holding that lactation is a pregnancy-related
medical condition covered under the PDA); EEOC v. Hous. Funding II,
Ltd., 717 F.3d 425, 428-29 (5th Cir. 2013) (same); 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 (explaining that because
``lactation is a pregnancy-related medical condition,''
discrimination against lactating or breastfeeding employees can
implicate Title VII); U.S. Dep't of Labor, Fact Sheet #73: FLSA
Protections for Employees to Pump Breast Milk at Work (Jan. 2023),
https://www.dol.gov/agencies/whd/fact-sheets/73-flsa-break-time-nursing-mothers (recognizing most employees' rights under the FLSA
to break time for lactation). The Department is aware that some
courts have held that the PDA's protection of pregnancy-related
medical conditions requires that those conditions be
``incapacitating,'' see, e.g., Wallace v. Pyro Mining Co., 789 F.
Supp. 867, 869-70 (W.D. Ky. 1990), aff'd, 951 F.2d 351 (6th Cir.
1991) (table), but in its 2015 guidance, the EEOC stated its
disagreement with Wallace and said: ``Nothing [in the PDA] limits
protection to incapacitating pregnancy-related medical conditions,''
see 2015 EEOC Pregnancy Guidance, at n.55. The Department agrees
with the EEOC and with those courts, such as the Fifth Circuit, that
have recognized that the PDA contains no such limitation. See, e.g.,
Hous. Funding II, Ltd., 717 F.3d at 428.
---------------------------------------------------------------------------
[[Page 33756]]
The Department acknowledges that there are many different medical
conditions that are related to pregnancy, childbirth, termination of
pregnancy, or lactation. To avoid confusion or the implication that a
specific medical condition may not be covered, the Department declines
to add to the regulatory text a list of specific medical conditions
that are related to, affected by, or arise out of pregnancy,
childbirth, termination of pregnancy, or lactation. However, the
Department acknowledges that such conditions include but are not
limited to conditions identified in the July 2022 NPRM and by
commenters, such as pregnancy-related fatigue, dehydration (or the need
for increased water intake), nausea (or morning sickness), increased
body temperature, anemia, and bladder dysfunction; gestational
diabetes; preeclampsia; hyperemesis gravidarum (i.e., severe nausea and
vomiting); pregnancy-induced hypertension (high blood pressure);
infertility; recovery from childbirth, miscarriage, or abortion;
ectopic pregnancy; prenatal or postpartum depression; and lactation
conditions such as swelling or leaking of breast tissue or mastitis. 87
FR 41515. In response to commenters who requested that the Department
add menstruation as a related condition, discrimination pertaining to
menstruation, perimenopause, menopause, and related conditions is a
basis of prohibited sex discrimination, as explained in detail in the
discussion of Sec. 106.10.
A pregnancy-related medical condition does not have to be a
disability as defined by the ADA for it to fall within the definition
of ``pregnancy or related conditions'' in Sec. 106.2, or for a student
to qualify for a reasonable modification under Sec. 106.40(b)(3)(ii).
Sections 106.10 and 106.40(b)(3)(ii) do not refer to or rely on the
ADA. In addition, if someone who is pregnant or experiencing a
pregnancy-related condition has a disability as defined in Section 504
or the ADA, that individual is protected from discrimination under
Section 504 and the ADA, as applicable, whether or not the disability
is related to pregnancy. In response to comments regarding the scope of
application of the pregnancy-related protections, the Department
confirms that the pregnancy-related protections of the final
regulations protect all students, employees, and applicants for
admission or employment from discrimination on the basis of pregnancy
or related conditions.
With respect to the suggestion to add the word ``perceived'' to the
definition of ``pregnancy or related conditions,'' the Department
agrees that the definition of ``pregnancy or related conditions'' in
Sec. 106.2, as it is applied in Sec. 106.10, extends to
discrimination based on a perceived status, whether the perception is
accurate or not. However, this conclusion is already apparent from the
text of the statute and relevant case law, which recognizes that
discrimination based on perceived characteristics violates Title IX.
See, e.g., Grabowski v. Arizona Bd. of Regents, 69 F.4th 1110, 1113,
1116-18 (9th Cir. 2023) (holding that Title IX bars sexual harassment
on the basis of perceived sexual orientation) (citing Bostock, 590 U.S.
644; Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)); cf. EEOC v.
Abercrombie & Fitch Stores, Inc, 575 U.S. 768, 773-74 (2015) (holding
that a plaintiff need not show that the employer knew that an applicant
required a religious accommodation to prove religious discrimination
under Title VII, in part because Congress did not add a knowledge
requirement to Title VII's prohibition on disparate-treatment
discrimination). As noted in the July 2022 NPRM, Title IX's broad
prohibition on discrimination ``on the basis of sex'' includes, at a
minimum, ``discrimination against an individual because, for example,
they are or are perceived to be . . . currently or previously
pregnant[.]'' 87 FR 41532. For example, if a professor refuses to allow
a student to participate in a clinical course based on the mistaken
belief that the student is pregnant, that professor may be
discriminating against a student based on sex and denying the student
access to the recipient's education program or activity based on the
stereotype that a pregnant student is not physically capable of
participating in the course or will not be as dedicated due to the
demands of pregnancy.
Likewise, in connection with the suggestion to add the word
``expected'' to the definition of ``pregnancy or related conditions,''
the Department disagrees that this is necessary, because Sec. Sec.
106.21(c) (Admission), 106.40(b)(1) (Parental, family, or marital
status, pregnancy or related conditions (for students)), and 106.57(b)
(Parental, family, or marital status, pregnancy or related conditions
(for employment)), as amended in these final regulations, provide that
a recipient may not discriminate against any applicant, student, or
employee on the basis of ``current, potential, or past pregnancy or
related conditions.'' The Department interprets the word ``potential''
to cover pregnancy or related conditions that are expected, likely, or
have the capacity to occur. In response to one commenter's question,
protection based on potential pregnancy or related conditions would
apply to, for example, individuals about whom rumors circulate related
to pregnancy (e.g., regarding an individual's fertility care, planning
for pregnancy, circumstances of pregnancy, or the cause or reason for
termination of pregnancy) or in the context of individuals seeking
fertility care or otherwise planning a possible pregnancy.
Additionally, Sec. 106.10 of the final regulations prohibits
discrimination on the basis of sex stereotypes, which may include
discrimination based on others' expectations regarding a person's
pregnancy or related conditions and assumptions about limitations that
may result. For example, a school that fired a teacher when she got
married based on the assumption that all married women get pregnant and
quit their jobs would be discriminating based on sex stereotypes about
both married women and about pregnancy and would thus violate Title
IX's prohibition on discrimination ``on the basis of sex.'' 20 U.S.C.
1681.
In response to commenters' question as to the reason the Department
changed the title of Sec. 106.40(b) from ``pregnancy and related
conditions'' to ``pregnancy or related conditions,'' the Department did
so for clarity and to match the defined term ``pregnancy or related
conditions'' as defined in these final regulations at Sec. 106.2.
``Or'' is more accurate and inclusive as ``pregnancy or related
conditions'' includes situations in which a person is pregnant and also
has a related condition as well as in which someone is only pregnant or
only has a pregnancy-related medical condition.
While some commenters thought that defining ``pregnancy or related
conditions'' was unnecessary because pregnancy discrimination is
already protected under Title IX, as indicated in the July 2022 NPRM,
defining the term ``pregnancy or related conditions'' more precisely
describes the requirements of Title IX and helps clarify perceived gaps
in coverage. 87 FR 41515.
Changes: The Department deleted the word ``their'' from clause (3)
of the definition of ``pregnancy or related conditions'', so that
clause (3) now states ``[r]ecovery from pregnancy, childbirth,
termination of pregnancy, lactation, or related medical conditions.''
[[Page 33757]]
Comments Regarding Inclusion of Termination of Pregnancy
Comments: Some commenters expressed support for the Department's
inclusion of ``termination of pregnancy'' in the proposed definition of
``pregnancy or related conditions,'' and explained that many forms of
discrimination occur based on termination of pregnancy, including
harassment, the refusal to excuse absences, and retaliation. Some
commenters also expressed the view that the proposed regulations will
help student athletes, who need support during and after pregnancy or
termination of pregnancy to recover and resume educational and athletic
activities.
Some commenters generally opposed the inclusion of ``termination of
pregnancy'' in the definition of ``pregnancy or related conditions,''
for a variety of reasons, including religious or moral objections;
because they see it as dissimilar from pregnancy, childbirth, or
lactation; or because they believe its inclusion is inconsistent with
the purpose of Title IX. Some commenters stated that they opposed any
Federal government support for or involvement with abortion.
Some commenters requested that the Department clarify that the
phrase ``termination of pregnancy'' in the definition of ``pregnancy or
related conditions,'' includes miscarriage, ``loss of pregnancy,''
future or past abortion, or abortion for any reason. Others asked that
some or all these elements be excluded; for example, some commenters
asked that ``termination of pregnancy'' include miscarriage but exclude
abortion. Some commenters expressed that the phrase ``termination of
pregnancy'' was vague.
Discussion: The Department appreciates commenters' range of views
about the inclusion of ``termination of pregnancy'' in the definition
of ``pregnancy or related conditions'' in Sec. 106.2. To reiterate,
the Title IX regulations have included nondiscrimination protection for
``termination of pregnancy'' since their initial promulgation in 1975,
which prohibited discrimination on the basis of ``pregnancy,
childbirth, false pregnancy, termination of pregnancy or recovery
therefrom[.]'' See 40 FR 24128 (codified at 45 CFR 86.21(c)(2),
86.40(b)(2), 86.57(b) (1975)); 34 CFR 106.21(c), 106.41(b)(1),
106.57(b) (current). Thus, to the extent that commenters' concerns
involved the Department newly including such protection in the
regulations, those concerns were based on a misunderstanding of the
current regulations.
Addressing commenters' concerns about clarity and vagueness, the
Department disagrees that the term ``termination of pregnancy'' is
vague. Consistent with the inclusion of the text in the original Title
IX regulations in 1975, the Department interprets ``termination of
pregnancy'' to mean the end of pregnancy in any manner, including,
miscarriage, stillbirth, or abortion. Additionally, the definition of
``pregnancy or related conditions'' includes ``medical conditions
related to'' or ``recovery from'' pregnancy and termination of
pregnancy. Miscarriage, stillbirth, and abortion, among other
conditions, are medical conditions related to pregnancy, as are
recovery from miscarriage, stillbirth, and abortion. Title IX prohibits
discrimination against any person based on their seeking, obtaining, or
having experienced termination of pregnancy, subject only to narrow
limitations discussed in the next section. The Department reiterates
that the inclusion of ``termination of pregnancy'' in the revised
definition of pregnancy or related conditions under Sec. 106.2 merely
incorporates the current regulations in place since 1975. See 40 FR
24128 (codified at 45 CFR 86.21(c)(2), 86.40(b)(2), 86.57(b) (1975));
34 CFR 106.21(c), 106.41(b)(1), 106.57(b) (current).
The Department disagrees that ``termination of pregnancy'' should
be excluded from the definition of ``pregnancy or related conditions''
based on the commenters' arguments that it is inconsistent with the
purpose of Title IX because it is unlike pregnancy, childbirth, and
lactation. As noted in the preceding section, the definition of
``pregnancy or related conditions'' is broadly inclusive and covers all
aspects of pregnancy, as necessary to carry out Title IX's
nondiscrimination mandate. Termination of pregnancy is an aspect of
pregnancy. Like pregnancy or childbirth, termination of pregnancy--
whether related to miscarriage, stillbirth, or abortion--can present
health needs that create obstacles to education or employment. As a
result, ensuring that recipients do not discriminate on the basis of
termination of pregnancy is necessary to ensure that individuals are
not subject to discrimination on the basis of sex.
Comments related to termination of pregnancy and religious
objections are addressed in the First Amendment discussion below.
Changes: None.
Abortion Neutrality Provision, 20 U.S.C. 1688
Comments: Some commenters asserted that including ``termination of
pregnancy'' in the definition of ``pregnancy or related conditions''
would be inconsistent with 20 U.S.C. 1688 (the ``Danforth Amendment''
or ``section 1688''), and that instead the definition should exempt
abortion and health insurance coverage of abortion. Some commenters
asked whether a recipient is required to or would feel pressured to
report a suspected abortion to law enforcement, and if so, the
implications for parental rights. Some commenters asked the Department
to confirm that it would be a violation of Title IX to discipline a
student for terminating a pregnancy.
Some commenters concluded that including ``termination of
pregnancy'' in the definition of ``pregnancy or related conditions''
impermissibly preempts State law. A group of commenters asked the
Department to clarify how a recipient can comply with its Title IX
obligations to those who experience termination of pregnancy or related
conditions without coming into conflict with or violating State
abortion laws.
Discussion: As explained above, since the Title IX regulations were
first promulgated in 1975, the Department consistently interpreted the
statute's broad nondiscrimination mandate to prohibit discrimination on
the basis of termination of pregnancy. 40 FR 24128 (codified at 45 CFR
86.21(c)(2), 86.40(b)(1), 86.57(b) (1975)); 34 CFR 106.21(c),
106.41(b)(1), 106.57(b) (current). Although ``termination of
pregnancy'' encompasses abortion, the Department acknowledges that
section 1688 limits the Department's enforcement of section 1681's
general nondiscrimination mandate in specific ways. Section 1688
provides that nothing in Title IX ``shall be construed to require or
prohibit any person, or public or private entity, to provide or pay for
any benefit or service, including the use of facilities, related to an
abortion.'' This is followed by a clause that prohibits the first
sentence from being read ``to permit a penalty to be imposed on any
person or individual because such person or individual is seeking or
has received any benefit or service related to a legal abortion.''
Consistent with this limitation, these final regulations prevent
recipients from being required to provide or pay for benefits or
services related to, or use facilities for, abortions, even when the
denial could otherwise be construed as discriminatory under section
1681. Said another way, if a recipient's refusal to
[[Page 33758]]
provide or pay for benefits or services related to abortion is
challenged as sex discrimination under section 1681, the recipient
could cite section 1688 to argue that it is under no obligation to
provide or pay for any benefit or services related to an abortion. For
example, because of section 1688, Title IX does not require a campus-
run hospital or health center to provide abortions, even if it offers a
wide array of other health services. Similarly, because of section
1688, Title IX does not require a school that offers student health
insurance to cover abortion under its plan, even if the plan covers
other temporary medical conditions. By contrast, a school that chooses
to provide health insurance for other temporary medical conditions
cannot deny coverage for treatment related to miscarriage, which is
covered by Title IX's protection against discrimination for
``termination of pregnancy,'' but does not fall within the limitation
of section 1688. A determination that the Danforth Amendment limits
Title IX, if at all, in ways beyond those just described will be fact-
specific and must be evaluated on a case-by-case basis, considering
whether the issue involves (1) a request for a recipient to pay for or
provide (2) a benefit or service, that is (3) related to an abortion,
within the intent of section 1688. The Department further explains the
application of section 1688 to reasonable modifications for students
due to pregnancy or related conditions in the discussion of final Sec.
106.40(b)(3)(ii) below.
The Danforth Amendment text makes clear that the narrow limitation
it places on the Department's enforcement of Title IX's
nondiscrimination mandate may not justify other forms of discrimination
prohibited by section 1681. Consistent with section 1688's self-
constraining clause, and informed by contemporaneous sources regarding
congressional intent with respect to the passage of the Danforth
Amendment,\79\ the Department interprets section 1688's prohibition on
penalties to mean that a recipient may not rely on section 1688 to
deprive any person of any right or privilege because they are
considering, want to have, or have had a legal abortion, provided that
the right or privilege the person seeks to exercise does not require
the recipient to provide or pay for a benefit or service related to an
abortion. As such, a policy or action that specifically targets
individuals who have received abortion care for adverse treatment may
violate the general nondiscrimination mandate in section 1681.
Moreover, a recipient may not punish or retaliate against a student or
employee solely for seeking or obtaining an abortion. For example, a
high school may not exclude a student from participating in the student
council solely because the student has had an abortion, because doing
so would be discrimination prohibited by section 1681. Participating in
the student council is not a benefit or service related to abortion,
and excluding the student on the basis of abortion would constitute a
penalty. Accordingly, section 1688 would provide no defense to the
school. Similarly, a college may not deny a professor a raise just
because it learned she planned to have an abortion because doing so
would constitute discrimination prohibited by section 1681. Because the
raise has nothing to do with abortion and so is not a benefit or
service related to abortion, and denying the raise would also be a
penalty, Section 1688 likewise would provide no defense. See also 134
Cong. Rec. H565-02 (daily ed. Mar. 2, 1988) (statements of Sen. John
Danforth, Sen. James Jeffords, Rep. Augustus Hawkins, Rep. Walter
Leslie AuCoin, Rep. William Donlon Edwards). Inquiries into the
circumstances of an abortion may also be discriminatory--for example,
if informed by sex stereotypes or handled in a manner different than
how a recipient treats other temporary medical conditions--or may
impermissibly deter a student or employee from exercising rights under
Title IX. A recipient can implement these regulations without asking
questions of a student, employee, or applicant for admission or
employment about the specific circumstances surrounding the person's
pregnancy or related conditions, including a potential or past
abortion.
---------------------------------------------------------------------------
\79\ The legislative history of the Danforth Amendment indicates
that Congress intended the scope of the Amendment's first sentence
to be confined to providing or paying for benefits or services
related to an abortion, not to extend to all forms of discrimination
against someone who has an abortion or experiences related medical
conditions. See 134 Cong. Rec. H565-02 (daily ed. Mar. 2, 1988)
(statements of Rep. Augustus Hawkins, Rep. William Donlon Edwards,
and Sen. James Jeffords). For example, several lawmakers observed
that the Amendment would not limit Title IX's general
nondiscrimination protections for medical conditions or
complications related to an abortion. See 134 Cong. Rec. H565-02
(daily ed. Mar. 2, 1988) (statements of Rep. Augustus Hawkins, Rep.
Walter Leslie AuCoin, Rep. William Donlon Edwards, Sen. James
Jeffords). Congressional debate also reflects that lawmakers
intended the Danforth Amendment's prohibition on ``penalties'' to
broadly include the denial of privileges, such as scholarships,
housing, participation in extracurricular activities, including
athletics; and the refusal to hire or promote employees. See 134
Cong. Rec. H565-02 (daily ed. Mar. 2, 1988) (statements of Sen. John
Danforth, Sen. James Jeffords, Rep. Augustus Hawkins, Rep. Walter
Leslie AuCoin, Rep. William Donlon Edwards).
---------------------------------------------------------------------------
Section 1688 provides a partial limitation on the Department's
ability to enforce section 1681's nondiscrimination protection related
to abortion. However, the Department disagrees that section 1688
requires it to wholly exempt abortion and abortion services from the
proposed definition of ``pregnancy or related conditions,'' as
suggested by one commenter.
Changes: None.
Dobbs v. Jackson Women's Health Organization and Consistency With State
Law
Comments: Some commenters asked the Department to clarify how the
proposed regulations' inclusion of ``termination of pregnancy''
complies or otherwise interacts with the Supreme Court's overturning of
Roe v. Wade, 410 U.S. 113, 154 (1973) in Dobbs v. Jackson Women's
Health Organization, 597 U.S. 215, 230 (2022). Some believed Dobbs made
inclusion of ``termination of pregnancy'' more important for reasons
including that State abortion restrictions could result in more
students remaining pregnant or more likely to be discriminated against
based on termination of pregnancy.
Some commenters concluded that including ``termination of
pregnancy'' in the definition of ``pregnancy or related conditions''
impermissibly preempts State law. A group of commenters asked the
Department to clarify how a recipient can comply with its Title IX
obligations to those who experience termination of pregnancy or related
conditions without coming into conflict with or violating State
abortion laws.
Discussion: The Supreme Court issued the Dobbs decision on June 24,
2022, the day after the Department released an unofficial copy of the
July 2022 NPRM to the public. The content of the unofficial copy did
not change before publication in the Federal Register on July 12, 2022.
With respect to questions commenters raised about the Dobbs decision's
interaction with nondiscrimination protection for termination of
pregnancy under Title IX, as well as section 1688's prohibition on
penalties related to legal abortions, the Department clarifies that the
Dobbs decision does not alter the Department's interpretation of the
terms ``pregnancy or related conditions'' or ``termination of
pregnancy,'' or its interpretation of Title IX's general
nondiscrimination mandate in section 1681 or section 1688. The
Department is not adopting the final regulations as a response to
Dobbs. Dobbs did not opine on a
[[Page 33759]]
recipient's obligation to ensure that students or employees who seek or
have had abortions have equal access to education or employment. The
Department acknowledges commenter questions regarding the intersection
of the final regulations with Title IX, Dobbs, and State laws
restricting access to abortion, and the Department will offer technical
assistance, as appropriate, to help respond to questions. In response
to commenters asking about the interaction between Title IX and State
laws restricting access to abortion, the Department notes that, a
policy or action that specifically targets individuals who have
received abortion care for adverse treatment may violate the general
nondiscrimination mandate in section 1681.
Changes: None.
Statutory Authority
Comments: Some commenters posited that prohibiting discrimination
based on a decision to terminate a pregnancy is beyond the Department's
authority under Title IX, and that such a prohibition would require a
congressional amendment to Title IX or else would violate the major
questions doctrine, as articulated by the Supreme Court in West
Virginia v. EPA, 597 U.S. 697, 721 (2022). Some commenters expressed
their concern that the Department would expand abortion access through
enforcement and other regulatory guidance.
Discussion: The Department's regulation of discrimination based on
pregnancy or related conditions, including termination of pregnancy,
does not raise concerns under the major questions doctrine.\80\ The
Supreme Court has recognized the Department's broad authority, based on
Congress' express delegation, to issue regulations prohibiting sex
discrimination under Title IX. Gebser, 524 U.S. at 292; 20 U.S.C. 1682.
As discussed in the July 2022 NPRM and in the above section on the
Sec. 106.2 Definition of ``Pregnancy or Related Conditions''--General
Scope of Coverage, the prohibition on discrimination based on pregnancy
or related conditions, including termination of pregnancy, is neither
extraordinary nor unprecedented, and in fact has been in place since
the Title IX regulations were first promulgated in 1975. See 87 FR
41513; 40 FR 24128 (codified at 45 CFR 86.21(c)(2), 86.40(b)(1),
86.57(b) (1975)); 34 CFR 106.21(c), 106.41(b)(1), 106.57(b) (current).
---------------------------------------------------------------------------
\80\ See, e.g., West Virginia, 597 U.S. at 721. The Supreme
Court's decision in West Virginia was issued on June 30, 2022, after
the Department released the unofficial copy of the July 2022 NPRM on
June 23, 2022, so that case also could not be addressed in the July
2022 NPRM.
---------------------------------------------------------------------------
While only Congress has the authority to amend a statute, the
Department disagrees that the definition of ``pregnancy or related
conditions'' is beyond the scope of the Department's authority under
Title IX. Congress authorized the Department to issue regulations to
effectuate Title IX's prohibition on sex discrimination in education
programs or activities that receive Federal financial assistance,
consistent with achievement of the objectives of the statute. See 20
U.S.C. 1682. The Department is not redefining or attempting to redefine
Title IX, but rather effectuating Title IX pursuant to its statutory
authority, see 20 U.S.C. 1682, and the applicable regulations have
prohibited discrimination based on termination of pregnancy for nearly
half a century.
Responding to concerns that the Department will expand abortion
access through enforcement and other regulatory guidance, the
Department again reiterates that it has interpreted Title IX to protect
against discrimination based on termination of pregnancy since 1975.
Title IX and its implementing regulations ensure that students and
employees are able to make their own decisions about pregnancy or
related conditions without losing equal access to education or
education-related employment. Further, the Department's enforcement and
other regulatory guidance are limited to a recipient's obligation under
Title IX to ensure that students or employees who seek or have had
abortions have equal access to education or employment, and, therefore,
are unrelated to expanding abortion access.
Changes: None.
Cost-Benefit Analysis and Rationale
Comments: Some commenters argued that defining ``pregnancy or
related conditions'' to include abortion or termination of pregnancy is
arbitrary and capricious, and that the Department did not adequately
justify or weigh the costs and benefits of broadly defining pregnancy
or related conditions. Other commenters directed the Department's
attention to research and data regarding barriers faced by pregnant
students and employees in educational environments.
Discussion: The Department explains in detail the potential costs
and benefits of the final regulations related to nondiscrimination
based on pregnancy or related conditions in the Regulatory Impact
Analysis. In addition to this discussion, the Department notes that the
final regulations reflect the Department's decisions regarding how best
to implement the nondiscrimination mandate of Title IX, after
considering public comment and stakeholder engagement. The Department
is not required under the Administrative Procedure Act, relevant
Executive Orders, or OMB circulars, to cite statistics regarding every
underlying issue when conducting rulemaking. Nor is it arbitrary and
capricious to interpret ``pregnancy or related conditions'' to include
termination of pregnancy, including abortion, for reasons explained in
the July 2022 NPRM and reiterated above. See 87 FR 41513.
Changes: None.
Harm
Comments: Some commenters stated that including ``termination of
pregnancy'' in the definition of pregnancy or related conditions would
harm women in various ways they felt were contrary to Title IX,
including that it might impermissibly encourage or fund abortions or
increase sexual violence. Other commenters argued that including
``termination of pregnancy'' in the definition of pregnancy or related
conditions would incentivize recipients to offer access to abortions
because accommodating a student's or an employee's termination of
pregnancy and recovery would be less expensive and less burdensome for
the recipient than providing the student or employee with modifications
for pregnancy, childbirth, and lactation.
Discussion: The Department disagrees with commenters who argued
that the final regulations should not prohibit discrimination based on
termination of pregnancy for the reasons they described above. The
regulations simply ensure that students and employees are able to make
their own decisions about pregnancy or related conditions without
losing equal access to education or education-related employment.
The final regulations make clear that a recipient has obligations
to students and employees at all stages of pregnancy, including through
recovery and in connection with related medical conditions. Contrary to
some commenters' assertions, making clear that a recipient may not
discriminate on the basis of pregnancy or related conditions and must
provide reasonable modifications to students will enable students to
participate in education programs and activities without
discrimination. As described below, the final regulations clarify and
strengthen protections based on pregnancy or related conditions that
will promote students' and employees' continued access to a recipient's
education program or activity including, for
[[Page 33760]]
example, providing reasonable modifications to students for prenatal
care, birth, and postpartum care, and providing lactation space for
students and employees.
In addition to protections against pregnancy discrimination, these
final regulations contain provisions providing lactation space for
students and employees. Nothing in the final regulations encourages or
discourages pregnancy or termination of pregnancy. In addition,
contrary to commenters' concern, the final regulations do not encourage
sexual violence but rather contain extensive provisions aimed at
preventing, addressing, and eliminating it, because sexual violence is
prohibited sex discrimination.
Some comments appear to reflect a misunderstanding of the
regulations. First, a recipient is not required to provide reasonable
modifications due to pregnancy or related conditions for employees.
Second, with respect to students, these final regulations at Sec.
106.40(b)(3)(ii) make clear that a recipient must make only such
reasonable modifications as necessary to prevent sex discrimination and
ensure equal access to the recipient's education program or activity
based on the student's individualized needs in consultation with the
student. Although such reasonable modifications will be determined on a
case-by-case basis, the Department anticipates that typically they will
not be particularly expensive or extensive.
With respect to concerns that these regulations may encourage
individuals to get abortions or incentivize recipients to offer access
to abortions rather than reasonable modifications, the Department is
unaware of evidence that Title IX's longstanding provisions relating to
discrimination on the basis of pregnancy or related conditions,
including termination of pregnancy, have the effects commenters
projected. As noted above, the final regulations do not dictate how
students or employees make pregnancy or health-related decisions, but
rather ensure that a recipient allows them equal educational or
employment access no matter how their pregnancy progresses or what
conditions result. The Department concludes, in any event, that
ensuring that individuals do not face discrimination on the basis of
pregnancy or related conditions, including termination of pregnancy, in
federally funded education programs or activities is necessary to
effectuate Title IX's mandate.
Changes: None.
Intent of Title IX
Comments: Some commenters asserted that prohibiting discrimination
based on termination of pregnancy conflicts with Title IX because
discrimination based on termination of pregnancy is not a basis of sex
discrimination or because it only affects women.
Discussion: Discrimination based on termination of pregnancy is sex
discrimination for several reasons. First, the Department notes that
discrimination on the basis of pregnancy is a type of sex
discrimination acknowledged by case law. See Conley v. Nw. Fla. State
Coll., 145 F. Supp. 3d 1073, 1077-78 (N.D. Fla. 2015) (holding that
Title IX's prohibition on sex discrimination covered pregnancy based on
both statutory interpretation and legislative history); 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) (noting that the
district court found that a school discriminated against a student on
the basis of sex in violation of Title IX when it dismissed her from
the National Honor Society because of her pregnancy); 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) (holding that pregnancy discrimination ``is unquestionably
covered as a subset of sex discrimination under Title IX''). Likewise,
the Title IX regulations have considered discrimination based on
termination of pregnancy an aspect of pregnancy discrimination since
1975. See 40 FR 24128 (codified at 45 CFR 86.21(c)(2), 86.40(b)(1),
86.57 (1975)); 34 CFR 106.21(c), 106.41(b)(1), 106.57(b) (current).
Second, because pregnancy is necessarily a condition related to sex
characteristics (e.g., uterus, ovaries, fallopian tubes),
discrimination based on conditions that arise from pregnancy, including
termination of pregnancy, constitutes discrimination on the basis of
sex characteristics. Commenters offered no persuasive reason for
withdrawing protections for pregnancy discrimination on the basis of
the termination of pregnancy.
Finally, pregnancy discrimination, including because of termination
of pregnancy, is also a type of discrimination on the basis of sex
stereotypes. For example, a professor who learns a student recently
terminated her pregnancy and refuses to allow her into a field work
course because the professor believes that students who recently
terminated a pregnancy are unable to complete field work would be
discriminating on the basis of sex stereotypes. As discussed in the
July 2022 NPRM, discrimination against students and employees who are
pregnant or experiencing pregnancy-related conditions--including
conditions relating to termination of pregnancy--frequently functions
as a proxy for sex in discriminatory policies and procedures. See 87 FR
41513. Such discrimination is sometimes based on sex stereotypes about
the roles of men and women, or, in other cases, a recipient may fail to
accommodate conditions associated with women as effectively as those
associated with men. 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. See id.
Changes: None.
Consistency With Other Federal laws
Comments: Some commenters argued that including ``termination of
pregnancy'' in the definition of pregnancy or related conditions is
inconsistent with other Federal laws, including Title VII, Section 1557
of the ACA, 42 U.S.C. 18116 (Section 1557), Title X of the Public
Health Service Act, 42 U.S.C. 300 to 300a-6 (Title X), the Helms
Amendment, 22 U.S.C. 2151b(f)(1), and Federal case law. For example,
some commenters asserted that the Title IX final regulations would
require recipient health insurance or healthcare to cover abortion
under Title IX and not under Title VII; and that the regulations
violate the Helms Amendment, which prohibits the use of certain Federal
funds for foreign assistance to pay for abortion as a method of family
planning or to coerce anyone to provide an abortion. Some commenters
said that the Department should address the impact of the proposed
regulations in health care or explicitly state that Title IX does not
apply in the health care context.
Discussion: To the extent that commenters raised concerns that the
final regulations conflict with other Federal laws such as Title VII,
Title X, Section 1557, and the Helms Amendment because these commenters
perceived the final Title IX regulations to require a recipient to pay
for abortions either directly or through health insurance, these
commenters are mistaken. As explained above in the
[[Page 33761]]
section on the Sec. 106.2 Definition of ``Pregnancy or Related
Conditions''--Abortion Neutrality Provision, 20 U.S.C. 1688, nothing in
Title IX or these final regulations requires recipients to pay for
abortions either directly or through health insurance. Indeed, these
regulations are consistent with 20 U.S.C. 1688, which provides that
Title IX may not be ``construed to require or prohibit any person, or
public or private entity, to provide or pay for any benefit or service,
including the use of facilities, related to an abortion.'' The
Department and these final regulations abide by that limitation.
Section 1557 prohibits sex discrimination in federally funded
health programs and activities, some of which may also be education
programs and activities covered under Title IX. Title IX and Section
1557 are independent authorities, and requirements under Section 1557
are outside of the scope of this rulemaking. To the extent a recipient
operates an education program or activity subject to Title IX that is
also a health program or activity subject to Section 1557, it is
obligated to comply with both.
Changes: None.
Alternative Proposals
Comments: Some commenters suggested alternatives to the inclusion
of ``termination of pregnancy'' in the definition of ``pregnancy or
related conditions,'' including providing adoption assistance and free
medical care, providing accommodations and assistance to pregnant
students and mothers, supporting lactation spaces in schools and adding
changing tables to restrooms.
Some commenters asked that the Department address the issues
related to pregnancy in ways other than through the regulations,
including through a separate rulemaking, subregulatory guidance,
training, or a public forum.
Discussion: The Department appreciates commenters' suggestions for
alternatives to inclusion of ``termination of pregnancy'' in the
regulations but believes that such coverage is necessary to prevent sex
discrimination, as described above. Although some of the commenters'
ideas such as adoption assistance and free medical care are beyond the
scope of the final regulations, the Department notes that several of
the commenters' other suggestions are encompassed in the final
regulations, such as requiring lactation spaces in schools and
providing reasonable modifications for students who are pregnant or
experiencing pregnancy-related conditions.
The Department declines the suggestions to conduct a separate
rulemaking related to pregnancy or related conditions, instead of
issuing these final regulations, because the process for developing
these final regulations has been extensive and thorough, with a wide
range of views expressed and considered, including on issues related to
pregnancy or related conditions. Going forward, the Department will
offer technical assistance and guidance, as appropriate, to promote
compliance with the final regulations.
Changes: None.
First Amendment
Comments: Some commenters opposed the inclusion of abortion within
the definition of ``pregnancy or related conditions'' because of their
views--moral, religious, or otherwise--that life begins at conception.
Relatedly, they stated that including ``termination of pregnancy'' in
the definition of pregnancy or related conditions would interfere with
constitutionally protected rights, including parental rights, various
religious freedoms, and free speech rights. For example, they suggested
that the inclusion of ``termination of pregnancy'' in the proposed
definition of ``pregnancy or related conditions'' would jeopardize the
religious freedoms of individuals and entities that object to abortion,
including healthcare providers, members of certain faiths, or religious
schools or other institutions, and potentially subject them to
discrimination.
Commenters asked the Department to exempt individuals and
recipients from Title IX compliance that would conflict with their
moral or religious beliefs; for example, so they would not have to
provide abortion-related health care or information. Some commenters
asked the Department to clarify when anti-abortion speakers or acts
would violate Title IX.
Discussion: The Department has carefully considered concerns that
the definition of ``pregnancy or related conditions'' may impact
religious beliefs and expression. As an initial matter, the Department
observes again that prohibiting discrimination based on ``termination
of pregnancy'' is not new but instead has been part of the Title IX
regulations since 1975. See 40 FR 24128(codified at 45 CFR 86.21(c)(2),
86.40(b)(1), 86.57(b) (1975)); 34 CFR 106.21(c), 106.40(b)(1),
106.57(b) (current). Thus, to the extent that commenter concerns
involved negative consequences that commenters thought might follow
from ``adding'' such protection to the regulations, those concerns are
based on a misunderstanding of the existing regulations. Likewise, as
described under the heading Consistency with Other Federal Laws, the
final regulations do not require a recipient to provide or pay for
benefits or services related to, or use facilities for, abortions.
Further, the pregnancy-related provisions, including the definition
of ``pregnancy or related conditions,'' do not limit Sec. 106.6(d),
which states that nothing in the Title IX regulations requires a
recipient to restrict any rights that would otherwise be protected from
government action by the First Amendment; deprive a person of any
rights that would otherwise be protected from government action under
the Due Process Clauses of the Fifth and Fourteenth Amendments; or
restrict any other rights guaranteed against government action by the
United States Constitution. The Department reaffirms that a recipient
cannot use Title IX to limit the free exercise of religion or protected
speech or expression. Similarly, the Department also underscores that
none of the amendments to the regulations changes or is intended to
change the commitment of the Department to fulfill its obligations in a
manner that is fully consistent with the First Amendment and other
guarantees of religious freedom in the Constitution of the United
States and Federal law. See, e.g., 42 U.S.C. 2000bb-2000bb-4 (Religious
Freedom Restoration Act). For additional discussion regarding the First
Amendment, see the section on Hostile Environment Sex-Based
Harassment--First Amendment Considerations (Sec. 106.2).
Finally, Title IX has since its passage in 1972 contained an
exemption for a recipient that is controlled by a religious
organization from complying with provisions of the regulations that
conflict with a specific tenet of the religious organization. 20 U.S.C.
1681(a)(3). This provision and Sec. 106.12 of the Department's Title
IX regulations, which implements this statutory provision, remain
unchanged. The Department posts correspondence regarding religious
exemptions on its website.\81\ For additional explanation of religious
exemptions from Title IX, see the discussion of Religious Exemptions
(Section VII).
---------------------------------------------------------------------------
\81\ See https://www2.ed.gov/about/offices/list/ocr/correspondence/other.html (last visited Mar. 12, 2024).
---------------------------------------------------------------------------
Changes: None.
[[Page 33762]]
2. Section 106.2 Definition of ``Parental Status''
Comments: The Department received many comments expressing support
for the proposed definition of ``parental status.'' The Department also
received comments opposing the proposed definition of ``parental
status,'' with several commenters asserting that the definition would
be too broad and others raising concerns about the proposed additions
of ``in loco parentis,'' ``legal custodian or guardian,'' and
``actively seeking legal custody, guardianship, visitation, or
adoption.'' One commenter suggested raising the age of the person
receiving care from 18 years old to 21 years old.
Other commenters proposed that the Department adopt a more
inclusive term than ``parental status,'' such as guardian or
representative, and asked the Department to include coverage of
domestic partners of a child's parent as well as parents who have
conceived via assisted reproductive technology but are not biologically
related. Some commenters asked the Department to define ``family
status.''
Discussion: Since 1975, the regulations implementing Title IX have
prohibited sex-based distinctions based on parental, family, or marital
status to ensure that persons are not limited or denied in their access
to a recipient's education program or activity based on sex. 40 FR
24128 (codified at 45 CFR 86.21(c), 86.40(a), 86.57(a) (1975)); 34 CFR
106.21(c), 106.40(a), 106.57(a) (current). However, prior to this
rulemaking, the term ``parental status'' had not been defined in the
Title IX regulations. The Department recognizes that sex stereotypes
about who bears responsibility for raising children are still common
and may affect applicants, students, and employees who are or may
become parents when accessing educational opportunities. By defining
``parental status'' in Sec. 106.2, the Department provides clarity
regarding the scope of Title IX's prohibition on sex discrimination
related to parental status, and the Department acknowledges commenters'
support for including this definition. As explained in the July 2022
NPRM, the Department found Executive Order 13152, 65 FR 26115, which
has been in place since May 2000, informative in developing this
definition. See 87 FR 41516. Commenters provided no case law, nor was
the Department able to find any, indicating that the definition is too
broad, unclear, or otherwise legally insufficient. The definition of
``parental status'' in Sec. 106.2 does not bestow parental authority
on any person. As a general matter, parental rights are determined by
State law, and this definition does not abrogate those rights. Instead,
the definition defines the scope of the prohibition on sex
discrimination in the adoption or implementation of any policy,
practice, or procedure concerning parental status of a student,
employee, or applicant for admission or employment.
Regarding the inclusion of a person who is ``in loco parentis,''
many commenters interpreted this language as permitting a recipient to
be ``in loco parentis'' over a student. The definition of ``parental
status'' in Sec. 106.2 applies only to its use in Sec. Sec.
106.21(c)(2)(i), 106.37(a)(3), 106.40(a), and 106.57(a)(1), which
prohibit sex discrimination related to a person's parental status. To
read the definition to include a recipient as ``in loco parentis''
would be incorrect as the definition refers to a person who may be
subjected to sex discrimination under these regulations, which in this
context would not be an entity. Moreover, as stated above, this
provision does not bestow parental authority or grant parental rights.
The Department declines to offer specific examples of people who would
be considered ``in loco parentis'' and how to obtain that designation
because that will depend on the facts and circumstances of a particular
case and on State law. As ``in loco parentis'' is a familiar term in
law, it is unnecessary to offer further clarification.
Similarly, the Department declines to offer specific examples of
who would be considered a legal custodian or guardian and how such an
individual would be selected and appointed, as that determination will
depend on the facts and circumstances of a particular case and on State
law. As with ``in loco parentis,'' ``legal custodian or guardian'' is
familiar in law and it is unnecessary to offer further clarification.
Regarding the inclusion of a person who is ``actively seeking legal
custody, guardianship, visitation, or adoption,'' the Department
disagrees with commenters who asserted this language diminishes
parental rights. Commenters misinterpreted this provision as creating a
conflict among parental rights by granting the same parental rights to
those who are actively seeking legal custody over another person as an
individual who already has legal authority over another. Again, this
definition does not grant or diminish parental rights to any person. It
simply defines categories of individuals who are protected against sex
discrimination under final Sec. Sec. 106.21(c)(2)(i), 106.37(a)(3),
106.40(a), and 106.57(a)(1); it also does not dictate whom the
Department would consider to be a parent, guardian, or authorized legal
representative for purposes of other parts of the Title IX regulations.
The Department declines to raise the age of the person receiving
care to 21 years old because most States have set the age of legal
majority at 18 years old, and the definition of ``parental status''
includes those with the relevant relationship with respect to persons
over the age of 18 who are incapable of self-care because of a physical
or mental disability.
The Department acknowledges the suggestion to use a more inclusive
term than ``parental,'' such as guardian or representative, but the
text of the definition addresses the underlying concern of ensuring
that individuals other than legal parents are protected from
discrimination. Additionally, the Department declines to add a separate
category to the definition of ``parental status'' for domestic partners
and parents who have conceived via assisted reproductive technology but
are not biologically related to a child because only one of the seven
categories enumerated in the definition is limited to biological
relationships and many of the categories could also apply to such
individuals, depending on the facts presented.
Finally, the Department considered the suggestion to define
``family status'' but determined that a definition is not necessary.
The Department considers the term ``family status'' to be sufficiently
well understood that it need not be defined in the regulatory text, but
nevertheless clarifies that the Department considers the term to be
broadly inclusive and refers to the configuration of one's family or
one's role in a family.
Changes: None.
B. Admissions
1. Section 106.21(c) Parental, Family, or Marital Status; Pregnancy or
Related Conditions
General Support
Comments: Some commenters supported prohibiting discrimination
against applicants for admission based on pregnancy or related
conditions because it would allow for a more inclusive educational
environment, would contribute to increased college or university
completion rates and greater upward mobility for students who are
pregnant or experiencing pregnancy-related conditions, and would be
vital to such applicants' wellness and success. A group of commenters
stated that the proposed regulations clarify and expand upon existing
Title IX protections and
[[Page 33763]]
help ensure that neither pregnancy nor parenting status hinder a
student's full and equal access to educational opportunities.
Discussion: The Department acknowledges commenters' support for
Sec. 106.21. The Department shares the goals of ensuring that school
environments are inclusive and that recipients prevent discrimination
and ensure equal access to their education programs or activities for
students who are pregnant or experiencing pregnancy-related conditions
to give full effect to Title IX.
The Department made three changes to the text of final Sec.
106.21(c)(2). Upon review, the Department determined that replacing the
word ``apply'' with ``implement'' in Sec. 106.21(c)(2)(i) improves
clarity consistent with similar revisions in final Sec. Sec. 106.40(a)
and 106.57(a), and for consistency also decided to replace the words
``establish or follow'' in Sec. 106.21(c)(2)(ii) with ``adopt or
implement.'' In addition, in Sec. 106.21(c)(2)(iii), the Department
made a grammatical correction by adding the word ``a'' between the
words ``[m]ake'' and ``pre-admission inquiry.''
The Department explains the application of the final regulations to
parental status in the discussion of the definition of ``parental
status'' in Sec. 106.2.
Changes: Section 106.21(c)(2)(i) has been revised to substitute the
word ``implement'' for the word ``apply.'' Section 106.21(c)(2)(ii) has
been revised to substitute the words ``adopt or implement'' for the
words ``establish or follow.'' Lastly, Sec. 106.21(c)(2)(iii) has been
revised to add the word ``a'' before ``pre-admission inquiry.''
Application Only to Recipients Subject to Subpart C
Comments: Some commenters suggested that the Department clarify
that the revised provisions in proposed Sec. 106.21 do not apply to
nonvocational elementary schools and secondary schools, which the
commenters deemed appropriate considering current Sec. 106.15(d),
proposed Sec. 106.31(a)(3), and current Departmental guidance.
Discussion: The Department confirms that Subpart C of the
regulations, which governs admissions, does not apply to nonvocational
elementary schools and secondary schools. 34 CFR 106.15(c), (d). The
Department adds that, under Sec. 106.34(a), nonvocational elementary
schools and secondary schools may not refuse participation based on
sex, with some exceptions listed in the provision, and Sec. 106.34(c)
addresses admissions to single-sex public nonvocational elementary
schools and secondary schools.
Changes: None.
``Perceived'' and ``Expected''
Comments: One commenter urged the Department to add ``perceived''
and ``expected'' to the list of protected statuses in Sec.
106.21(c)(2)(ii) to better capture the ways that stigma and bias about
pregnancy prevent equal access to educational opportunities. The
commenter explained that adding ``perceived'' and ``expected'' to the
list of protected statuses would help ensure that applicants rumored or
otherwise perceived to be pregnant are not denied educational
opportunities, that applicants who seek fertility care or otherwise
plan to be pregnant are not discriminated against on that basis, and
that applicants are not denied educational opportunities because they
might become pregnant.
Discussion: The Department declines to add ``perceived'' and
``expected'' statuses to Sec. 106.21(c)(2)(ii) for the same reasons
discussed in connection with the comment recommending that the
Department make the same change to the ``definition of pregnancy'' in
Sec. 106.2. The Department's rationale is explained more fully in the
discussion of Sec. 106.10.
Changes: None.
Pre-Admission Inquiries
Comments: One commenter requested that the Department change
proposed Sec. 106.21(c)(2)(iii), which prohibits a recipient from
making a pre-admission inquiry into the marital status of an applicant,
to include ``current, potential, or past pregnancy or related
conditions,'' which the commenter stated is particularly important
following Dobbs. That commenter also requested that the Department
extend proposed Sec. 106.21(c)(2)(iii) to include ``family status and
parental status'' because women are often custodial parents and a
recipient with stereotypical concerns about a parenting applicant's
commitment to her education may use such information to discriminate
against that applicant. Another commenter urged the Department to
clarify that pre-admission inquiries regarding the parental status of
an applicant are permitted under Title IX if they do not affect the
applicant's chances of admission.
A group of commenters objected to the Department's proposal to
replace the phrase ``such applicants of both sexes'' in current Sec.
106.21(c)(4) with ``all applicants'' in proposed Sec.
106.21(c)(2)(iii), because the ``both sexes'' phrasing best conveys
what Title IX prohibits and is used in the Title IX statute, the
removal of the phrase would make the sentence grammatically incorrect,
and keeping the words ``both sexes'' would not preclude a recipient
from choosing to ask more specifically how an applicant identifies.
Some commenters encouraged the Department to consider the impact of
proposed changes to pre-admission inquiries regarding a student's sex
in proposed Sec. 106.21(c)(2)(iii), including the impact on student
privacy.
Discussion: The Department agrees that an applicant's pregnancy or
related conditions and sex-based distinctions regarding parental,
family, or marital status should not affect their chances of admission
to a recipient institution and emphasizes that pre-admission inquiries
regarding the marital status of an applicant are not permitted under
the Department's Title IX regulations. However, the Department declines
to add ``current, potential, or past pregnancy or related conditions''
or ``family status and parental status'' to Sec. 106.21(c)(2)(iii) of
the final regulations. Section 106.21(c)(2)(i) and (ii) of the final
regulations already states that a recipient covered by subpart C must
not discriminate against any applicant based on current, potential, or
past pregnancy or related conditions and must not implement any policy,
practice, or procedure--including pre-admission inquiries--concerning
the parental, family, or marital status of a student or applicant that
treats that person differently based on sex. In addition, the
Department acknowledges the concerns raised by commenters who explained
that the widely used Common Application includes a question regarding
whether the applicant has children and if so, how many, and that the
anonymized responses are a rare source of data on the parenting student
population that is helpful to researchers and advocates.
The Department disagrees with the assertion that it is critical to
retain the words ``such applicants of both sexes'' in Sec.
106.21(c)(2)(iii). Contrary to the commenters' characterization,
stating that this pre-admission inquiry is permissible ``only if this
question is asked of all applicants'' is consistent with Title IX's
prohibition on sex discrimination and conveys the same point as the
current language, which prohibits a recipient from asking such
questions just of students of one sex. In addition, the words ``all
applicants'' are more inclusive and are grammatically correct. The
Department also does not find persuasive the fact that the ``both
sexes'' language was used in the 1972 statutory text, because it was
used in only one specific provision for
[[Page 33764]]
recipients that were transitioning from admitting only students of one
sex to admitting students of both sexes. See 20 U.S.C. 1681(a)(2).
As explained more fully in the discussion of Sec. 106.44(j), the
Department has carefully considered the impact of the regulatory
changes on maintaining confidentiality of personally identifiable
information, and in response to commenter concerns the Department
revised final Sec. 106.44(j) to prohibit the disclosure of personally
identifiable information obtained in the course of complying with this
part, with some exceptions. The disclosure restrictions are explained
more fully in the discussion of Sec. 106.44(j).
Changes: None.
Intersection With Disability Law
Comments: One commenter opposed the requirement in proposed Sec.
106.21(c)(1) that, in determining admissions, 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, because the commenter
interpreted the standard as requiring pregnancy to be considered a
disability. Another commenter asserted that the proposed regulations
were inconsistent with disability law to the extent they would require
a recipient to treat pregnant applicants differently than those with
other types of temporary disabilities.
Discussion: As the Department indicated in the July 2022 NPRM, some
conditions or complications related to pregnancy might qualify as
disabilities under Section 504 and the ADA, but pregnancy itself is not
a disability. 87 FR 41523. The Department continues to stress that if
someone who is pregnant or experiencing pregnancy-related conditions
has a disability, Section 504 or the ADA may also apply, whether or not
the disability is related to pregnancy.
At the same time, the Department agrees that it is important that a
recipient understand how to treat applicants for admission who are
pregnant or experiencing pregnancy-related conditions under Title IX.
The Department has considered the fact that some recipients may not
maintain standalone policies related to ``temporary disabilities,''
since that term is not used in Section 504 or the ADA, and that such an
omission could result in the application of the Title IX provision
regarding pregnancy and admissions being unclear. To simplify Sec.
106.21(c)(1) and avoid any suggestion that the provision applies only
when a recipient maintains policies related strictly to ``temporary
disabilities'' that may be used in comparison, the Department has
deleted the term ``or any temporary disability resulting therefrom''
and changed the words ``any other temporary disability or physical
condition'' to ``any other temporary medical conditions.'' The
Department views these changes as clarifying the scope of coverage and
ensuring that Sec. 106.21(c)(1) will apply to the extent a recipient
has any policies or practices regarding temporary medical conditions,
as that term is ordinarily understood.
A recipient's policy with respect to temporary medical conditions
may be subsumed within its policy related to disabilities, or it may be
separate. The Department also clarifies that, if the recipient does not
have a policy regarding the treatment of temporary medical conditions,
it must treat pregnancy or related conditions in the same manner that
it treats temporary medical conditions in practice. When the applicant
has a pregnancy-related condition that qualifies as a disability under
the ADA or Section 504, the individual is also protected from
discrimination under those laws as well.
Because a recipient's policies and practices regarding other
temporary medical conditions are the proper comparators for pregnancy
or related conditions, final Sec. 106.21(c)(1) requires that pregnancy
or related conditions and temporary medical conditions be treated in
the same manner and under the same policies and practices, including
with respect to the provision of reasonable modifications to applicants
with temporary medical conditions. If a recipient does not have a
policy or practice of providing reasonable modifications for applicants
with temporary medical conditions, it is not required to provide
reasonable modifications for pregnancy or related conditions under
Title IX. However, as noted above, when the applicant has a pregnancy-
related condition that qualifies as a disability, the recipient must
comply with its nondiscrimination obligations under the ADA and Section
504.
Changes: In final Sec. 106.21(c)(1), the words ``or any temporary
disability resulting therefrom'' have been removed and the words
``disability or physical condition'' have been changed to ``medical
conditions.''
Request To Extend Reasonable Modifications to Applicants
Comments: A group of commenters asserted that under proposed Sec.
106.21(c)(1), pregnant and parenting applicants for admission should
have rights to reasonable modifications under Title IX, independent of
what modifications are provided to those with temporary disabilities,
so that pregnant and parenting applicants are afforded the same
protections under Title IX as pregnant and parenting students who are
enrolled and to address the concern that a recipient may be unaware of
its obligation to accommodate an applicant with a temporary disability.
Discussion: The Department carefully considered the suggestion to
extend the reasonable modifications requirement to applicants for
admission but declines to do so for a few reasons. First, the
Department would need to consider additional information before making
such a change, particularly given factors of possible cost,
administrative burden, and possible interplay with other overlapping
legal requirements. Second, the Department notes that final Sec.
106.21(c)(1) requires a recipient, in the admissions process, to treat
pregnancy or related conditions in the same manner and under the same
policies as it would treat any other temporary medical condition. As a
result, for example, if a recipient provides an applicant who is
recovering from back surgery an extension of time for a medically
necessary period to submit a required application essay, it must do the
same for a student who is recovering from childbirth. Finally,
applicants whose pregnancy-related medical conditions qualify as
disabilities under Section 504 or the ADA may also be entitled to
reasonable accommodations during the application process under those
laws.
Changes: None.
Parental Status
Comments: One commenter stated that it is unnecessarily narrow for
proposed Sec. 106.21(c)(2)(i) to prohibit only discrimination that
treats parenting applicants differently based on sex and urged the
Department to explicitly prohibit discrimination against applicants for
admission based on that person's ``current, potential, perceived,
expected, or past parental, family, marital, or caregiver status,'' so
that recipients will not think they may discriminate against parenting
students or applicants as long as they do so equally across sexes. The
commenter explained that discrimination based on parental, family, and
caregiver status often constitutes discrimination on the basis of sex
because women are more often custodial parents, and such discrimination
is often tied to stereotypes that women who are
[[Page 33765]]
mothers are likely to neglect their education or should be focused only
on providing care to their children.
Discussion: The Department would need to consider additional
information before making such a change, particularly given possible
considerations of cost and administrative burden. The Department notes
that a recipient covered by Subpart C is prohibited from treating
parenting applicants differently based on sex under final Sec.
106.21(c)(2)(i) and from discriminating against them based on sex
stereotypes under Sec. 106.10, including about the proper roles of
mothers and fathers or the proper gender of caretakers.
Changes: None.
C. Discrimination Based on a Student's Parental, Family, or Marital
Status, or Pregnancy or Related Conditions
1. Section 106.40 Parental, Family, or Marital Status; Pregnancy or
Related Conditions; and Section 106.40(a) Status Generally
Comments: Many commenters expressed support for proposed Sec.
106.40(a) because it provides protection and addresses barriers that
parenting students face in pursuing educational opportunities. Some
commenters shared personal stories regarding their experiences as
parenting students, including being asked to withdraw from a
postsecondary institution, being discouraged from having more children,
risking loss of scholarships, and being subjected to sex stereotypes
regarding the expected roles of mothers and fathers.
In addition, several commenters urged the Department to broaden the
protections in proposed Sec. 106.40(a) by explicitly prohibiting
discrimination, including sex-based harassment, based on perceived,
expected, or past parental, family, marital, or caregiver status rather
than prohibiting only discrimination that treats parenting students
differently based on sex. One commenter asked the Department to specify
that discrimination based on parental status is prohibited throughout
the student's participation in the education program or activity, not
just immediately following the birth or adoption of a child. Some
commenters asserted that expectant parents who are not giving birth,
caregivers who are not parents, and students who are perceived to be
parents are improperly excluded from the protection of proposed Sec.
106.40(a).
Discussion: The Department acknowledges commenters' support of
proposed Sec. 106.40(a). The Department understands commenters'
suggestions to broaden the protections in proposed Sec. 106.40(a) to
explicitly prohibit discrimination and harassment based on perceived,
expected, or past parental, family, marital, or caregiver status rather
than prohibiting discrimination that treats parenting students
differently based on sex. However, the Department would need to
consider additional information before making such a change.
With respect to the suggestion to add the word ``perceived,'' the
Department declines this suggestion because a recipient is already
prohibited from treating parenting students differently based on sex
and from discriminating against them based on sex stereotypes,
including stereotypical views about the roles of mothers, fathers, or
caretakers, under Sec. 106.10. The Department agrees that it is sex
discrimination to use sex stereotypes to deny equal educational
opportunities related to a student's perceived marital or parental
status.
The Department also declines suggestions to add the word
``expected'' to the regulatory text, as the text already includes the
word ``potential,'' which the Department interprets to cover
discrimination based on the expectation that a student is or is not
married or a parent or has some other family status. The Department
further notes that the definition of ``parental status'' is not limited
to a timeframe immediately following the birth or adoption of a child
and agrees that the protection of Sec. 106.40(a) applies throughout a
student's participation in a recipient's education program or activity.
Regarding concerns about non-birthing parents and caregivers, the
Department refers commenters to the discussion of the definition of
``parental status'' in Sec. 106.2.
Changes: Consistent with similar changes for consistency in
Sec. Sec. 106.40(a) and 106.57(a), the Department has substituted the
word ``implement'' for ``apply.''
2. Section 106.40(b)(1) Pregnancy or Related Conditions--
Nondiscrimination
Comments: Many commenters expressed general support for the
proposed regulations' prohibition on discrimination on the basis of
``pregnancy or related conditions,'' explaining that this prohibition
would be consistent with Title IX's mandate to prohibit sex
discrimination. These commenters believed proposed Sec. 106.40(b)(1)
would advance pregnant and parenting students' equal access to
educational opportunities and improve outcomes for those students and
their children. Some commenters appreciated that the proposed
regulations would remove the outdated ``false pregnancy'' term. Some
commenters stated that students who are, or might be, pregnant should
not be denied education, and that modifications to an education program
should be made when necessary for the safety and comfort of pregnant
students, allowing them to both parent and succeed academically.
Several commenters cited the experiences of individual students who
either were harassed or feared harassment related to pregnancy or
related conditions.
Many commenters explained that pregnant and parenting students face
barriers to completing their education, including discrimination,
harassment, and a lack of institutional supports. Some commenters
provided information about the impact of pregnancy and parenting on
teen parents, including the negative impact on high school graduation
rates, career opportunities, and mental health, noting the
disproportionate impact of teen pregnancy and parenting on certain
groups. Some commenters observed that pregnancy discrimination is
prevalent in postsecondary education, and that parenting students are
less likely to graduate because of punitive attendance policies and,
when they do graduate, have higher levels of debt than their non-
parenting peers.
Some commenters asked the Department to confirm that it is a
violation of Title IX for a recipient to cause someone to lose a
college scholarship or their place on a team because of pregnancy.
Finally, some commenters urged the Department to issue updated guidance
for K-12 recipients on the Title IX rights of pregnant and parenting
students.
Discussion: The Department acknowledges the information shared by
commenters about the barriers to education faced by students who are
pregnant, experiencing pregnancy-related conditions, or parenting. The
Department agrees that the final regulations will clarify recipient
obligations to ensure that pregnant and parenting students are not
subject to discrimination on the basis of sex. The Department
acknowledges the support for Sec. 106.40(b)(1) prohibiting
discrimination against students and employees based on ``current,
potential, or past'' pregnancy or pregnancy-related conditions, and
agrees that this updated and comprehensive term will help reduce
barriers to educational access and professional achievement and improve
access to education and career opportunities.
Commenters' support reinforces the Department's view, as indicated
in the
[[Page 33766]]
July 2022 NPRM, that protecting students from discrimination on these
bases will help to achieve Title IX's objective of eradicating sex
discrimination in federally funded education programs and activities.
See 87 FR 41518. As discussed in the July 2022 NPRM, Title IX was
enacted in part because women were being denied educational access due
to views that they were less capable and less committed to academic
demands given their perceived pregnancy and childbearing obligations.
87 FR 41393. The Department is convinced that clarifying Title IX's
protections to cover current, potential, or past pregnancy or related
conditions will ensure that a student is not treated unfairly due to,
for example, a likelihood of having children in the future, having had
children in the past, or having experienced pregnancy or related
medical conditions. The Department further confirms its view that,
fundamental to the purpose of Title IX, the final regulations will
significantly help address the barriers to educational access arising
from perceptions about pregnancy and childbearing.
The Department notes that current Sec. 106.40(b)(1) already
prohibits discrimination against any student, including in any
extracurricular activity such as athletics, based on pregnancy,
childbirth, false pregnancy, termination of pregnancy, or recovery
therefrom. Final Sec. 106.40(b)(1) similarly prohibits any
discrimination based on a student's current, potential, or past
pregnancy or related conditions. ``Pregnancy or related conditions'' is
defined in Sec. 106.2 to include pregnancy, childbirth, termination of
pregnancy, and lactation; medical conditions related to pregnancy,
childbirth, termination of pregnancy, and lactation; and recovery from
pregnancy, childbirth, termination of pregnancy, lactation, or related
medical conditions, providing broadly inclusive coverage.
In these final regulations, the Department maintains its
longstanding interpretation that a recipient violates Title IX by
stopping or reducing financial assistance on the basis of pregnancy or
related conditions; subjecting students of one sex to additional or
different requirements, such as requiring women athletes to sign
contracts listing pregnancy as an infraction; or excluding students
from participating in a recipient's education program or activity,
including extracurricular activities and athletics, on the basis of the
student's pregnancy or a related condition. See, e.g., U.S. Dep't of
Educ., Office for Civil Rights, Dear Colleague Letter: Student Athletes
and Pregnancy (June 25, 2007), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-20070625.html.
Regarding the request for updated guidance for K-12 students, the
Department understands the importance of supporting recipients in the
implementation of these regulations and ensuring that students know
their rights. The Department anticipates that these regulations, which
apply with equal force in the elementary school and secondary school
setting, will clarify a recipient's obligations to students
experiencing pregnancy or related conditions or who are parenting. To
the extent that questions remain, or situations arise that require
further clarification, the Department will offer technical assistance
and consider guidance, as appropriate, to promote compliance with these
final regulations.
Changes: The Department has not made changes to the first sentence
of final Sec. 106.40(b)(1). Changes to the second sentence of final
Sec. 106.40(b)(1) are explained in the discussion of Sec.
106.40(b)(1) and (b)(3)(iii) below regarding Voluntary Access to
Separate Portion of Program or Activity.
3. Section 106.40(b)(2) Pregnancy or Related Conditions--Responsibility
To Provide Title IX Coordinator Contact and Other Information
Comments: Many commenters expressed support for the proposed
requirement that a recipient who has been informed of a student's
pregnancy or related conditions provide that student, or a person who
has the legal right to act on behalf of the student, with information
relating to the Title IX Coordinator, including contact information.
Commenters noted that even though Title IX has long prohibited sex
discrimination against pregnant and parenting students, many students
and employees are unaware of their rights, and that proposed Sec.
106.40(b)(2) will benefit students by informing them of those rights
and making staff more responsive to such students. Several commenters
shared personal accounts of how their lack of awareness of their rights
as pregnant or parenting students led them to lose instructional time
and other educational opportunities.
One commenter asserted that the requirement that the employee tell
the student how to notify the Title IX Coordinator ``for assistance''
was vague and could run afoul of certain State laws that restrict or
discourage access to abortion. Some commenters also asserted that the
phrase ``informed of'' in the proposed provision was vague, overbroad,
or could capture information that is revealed unintentionally, and
asked the Department to provide relevant examples demonstrating its
application. One commenter asked the Department to explain when, if
ever, an employee should act based on information regarding a student's
pregnancy obtained indirectly.
Some commenters raised concerns about students' privacy and, for
example, urged that the regulations protect students from incurring
civil or criminal penalties related to pregnancy or related conditions,
and clarify that disciplining or referring students to law enforcement
on these bases violates Title IX. Some commenters worried the proposed
provision would require a recipient to ask students sensitive or
unwelcome questions or make inappropriate assumptions about their
medical status and needs. Some commenters asked what the provision
would require a recipient to document, including whether they needed to
document if the Title IX Coordinator was previously notified, and how
to protect student privacy and records.
One commenter suggested that the Department remove the part of the
proposed provision that states that an employee need not act if the
employee reasonably believes the Title IX Coordinator has already been
notified, to avoid an employee's mistaken assumption regarding such
notification.
One commenter expressed that the provision was burdensome, for
example, due to the cost of training staff on action that may be
unneeded and because the proposed provision would be too difficult to
implement and monitor.
Other commenters objected that the provision was paternalistic or
would encourage sex stereotyping. Some commenters feared that the
provision would require employees to speak with students in cases of
abuse or unintended pregnancy or to incorrectly imply that a student
required a modification to the educational program. One commenter
stated that an employee providing the relevant information under the
provision could harm student-faculty relations.
Several commenters suggested the Department use other approaches to
inform students of their rights related to pregnancy or related
conditions, either instead of or in addition to the proposed provision.
These suggestions included written policies and procedures pertaining
to pregnancy and parental rights, student training, or providing
information through a website or syllabus statement.
Other changes to the provision suggested by commenters included
that employees refer students to the disability services office to
reduce the
[[Page 33767]]
burden on recipients and students and better align the processes under
Section 504 and the ADA; or that the Department adopt a single process
for both pregnancy-related and disability accommodations.
Some commenters suggested that the Department narrow the type of
employees subject to the provision to those with student-facing roles.
In addition, some commenters requested that references to ``the Title
IX Coordinator'' in proposed Sec. 106.40 be changed to ``the
recipient'' to clarify that the recipient has the ultimate
responsibility under this section.
Finally, some commenters opposed proposed Sec. 106.40(b)(2),
arguing that the provision would expand the scope of Title IX beyond
the Department's authority or without required congressional
authorization.
Discussion: Requiring employees to share the Title IX Coordinator's
contact information and information about the Title IX Coordinator's
ability to take specific actions will give students the information
they need to choose whether to seek reasonable modifications, voluntary
leave, or access to a lactation space as necessary, and will help
prevent potential disruptions to their access to education.
Importantly, the provision will not require students or their
families to have any advance knowledge of a recipient's obligations
(such as providing reasonable modifications, lactation space, or
leave), or to invoke specific words to trigger the requirement to
provide them with information about the Title IX Coordinator. But the
provision also does not require the recipient's employees to directly
inform the Title IX Coordinator of any information they obtain related
to a student's pregnancy. The provision thus balances several important
interests. First, the provision respects the student's interest in
being free from sex discrimination and accessing necessary support from
the recipient. Second, the provision promotes the right of the student
and the student's legal representatives to determine if, when, and what
information to share with a recipient regarding a student's pregnancy
or related conditions. Third, the provision accounts for the
administrative burden on recipients in carrying out this critical
informational function. Overall, the Department is convinced that the
regulations will empower students and their families to decide whether
they wish to obtain school-based supports, thereby avoiding sex
discrimination to the greatest extent possible, with minimal burden for
recipients.
The Department agrees with the commenter's suggestion that
replacing the term ``for assistance'' in Sec. 106.40(b)(2) would
provide clearer instruction to employees about what information they
must share and would prevent mischaracterization of the Title IX
Coordinator's role. In response to this comment, the Department has
revised the final regulations to require that an employee inform the
student or a person who has a legal right to act on behalf of the
student, when applicable, of the Title IX Coordinator's contact
information and that the Title IX Coordinator can coordinate specific
actions to prevent sex discrimination and ensure the student's equal
access to the recipient's education program or activity.
Further, the Department seeks to clarify other aspects of the
employee's role under Sec. 106.40(b)(2). Contrary to the
misunderstanding of some commenters, the Department clarifies that
Sec. 106.40(b)(2) does not require a school employee to approach a
student unprompted, ask a student about their pregnancy or any other
subject, or make assumptions about the student's needs or medical
status. The provision also does not require an employee to directly
notify the Title IX Coordinator regarding a student's pregnancy or
related conditions. Rather, the final provision requires an employee to
promptly provide the Title IX Coordinator's contact information only
when a student, or a person who has a legal right to act on behalf of
the student, first informs that same employee of that student's
pregnancy or related conditions. Even then, the employee would only
provide this information if the employee reasonably believes that the
Title IX Coordinator has not already been notified. The employee must
also inform the student or person who has a legal right to act on
behalf of the student that the Title IX Coordinator can coordinate
specific actions to prevent sex discrimination and ensure the student's
equal access to the education program or activity. The Department is
modifying the final regulations to omit the phrase ``employee is
informed,'' which drew concern from some commenters, and to clarify
that a student or their legal representative must directly inform an
employee to trigger the requirements under this provision. It is not
enough for an employee to be informed indirectly, or by someone other
than the student or their legal representative, or to merely suspect
that a student may be pregnant or experiencing pregnancy-related
conditions.
A student or a person who has a legal right to act on behalf of the
student ``informs'' an employee of a student's pregnancy or related
conditions when the student or such person tells the employee that the
student is pregnant or experiencing pregnancy-related conditions,
either verbally or in writing. For example, if a student tells a
teacher, ``I am pregnant and will be late to class on Wednesday due to
a doctor's appointment,'' the student has informed the teacher of the
pregnancy and the teacher's obligations under Sec. 106.40(b)(2) are
triggered. However, if the teacher merely overhears one student making
the same statement to another, the student has not directly informed
the teacher, so the employee is not required to act under the
provision. The requirement that the employee act only when directly
informed in this manner balances a student's interest in privacy and
autonomy with the necessity of preventing or eliminating sex
discrimination in a recipient's education program or activity. For
similar reasons, once information about the Title IX Coordinator's
contact information and coordination duties is provided, a student or
the student's legal representative should have the choice to disclose
pregnancy or related conditions to a recipient through the Title IX
Coordinator as they feel appropriate. Absent information about conduct
that reasonably may constitute sex discrimination (e.g., the student
telling the employee that not only is the student pregnant, but that
the student has been prohibited from trying out for the school play due
to the pregnancy)--in which case notification obligations are governed
by Sec. 106.44(c)--employees are not required to directly inform the
Title IX Coordinator of a student's pregnancy or related conditions.
In addition, while an employee has no duty to act under Sec.
106.40(b)(2) based only on their observation of or receipt of a
secondhand report about a student's pregnancy, employees should
recognize that such information may trigger duties outside of Title IX.
See 87 FR 41519 n.10; 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.
For several reasons, the Department declines the suggestion to
modify the provision so that an employee would be obliged to provide
the student relevant information only when the student first requests a
reasonable modification. First, a student may be unaware of their right
to a reasonable modification and
[[Page 33768]]
thus not know to ask a staff member about it. Second, this type of
requirement would complicate the employee's duty by requiring the
employee to determine whether a student's statement regarding pregnancy
also expressed interest in reasonable modifications, instead of simply
requiring an employee to act whenever a student or the student's legal
representative informs the employee of the student's pregnancy or
related conditions. Third, the Title IX Coordinator is best and most
efficiently positioned to provide information to a student on the
complete range of the recipient's obligations under these final
regulations, including leave, lactation space, and how the student can
make a complaint of discrimination.
Further, the Department is sensitive to and has accounted for
student concerns about confidentiality. While a recipient must comply
with final Sec. 106.40(b)(2), the provision does not require
documentation of compliance--contrary to what some commenters asserted.
Any records maintained voluntarily by a recipient would be subject to
the disclosure restrictions of Sec. 106.44(j) of the final
regulations, which prohibits the disclosure of personally identifiable
information obtained in the course of complying with this part, with
some exceptions. The disclosure restrictions are explained more fully
in the discussion of Sec. 106.44(j). Also, as explained above in the
discussion of final Sec. 106.2 regarding the definition of ``pregnancy
or related conditions'' and its application to termination of
pregnancy, a recipient may not punish or retaliate against a student
solely for seeking or obtaining an abortion.
The Department acknowledges commenters' questions and range of
views regarding whether the provision should apply when an employee
reasonably believes that the Title IX Coordinator has been notified.
The Department clarifies that there is no requirement that an employee
ask a student whether the Title IX Coordinator has been notified. If
the employee is unaware whether the Title IX Coordinator has been
notified at the moment the student or their legal representative
informs the employee of the student's pregnancy or related conditions,
the employee's only responsibility under the provision is to provide
the student with the required information regarding the Title IX
Coordinator. For example, if a student tells a teacher, ``I'm letting
you know I'm pregnant'' and nothing more, the employee must provide the
necessary information under the provision--specifically, the Title IX
Coordinator's contact information and that the Title IX Coordinator can
coordinate specific actions to prevent sex discrimination and ensure
the student's equal access to the education program or activity.
However, if the student instead says, ``I'm pregnant and working with
the Title IX Coordinator to make sure I have access to a bigger desk in
your math class,'' the employee has no further obligation to inform
under Sec. 106.40(b)(2), because it is reasonable for the employee to
believe from that conversation that the Title IX Coordinator has
already been notified of the student's pregnancy. The Department notes
that an employee's ``reasonable belief'' that the student has informed
the Title IX Coordinator does not need to come from the student but
could also come from the Title IX Coordinator telling relevant
teachers, for example, that the student has been approved for
reasonable modifications related to the student's pregnancy. The
Department's approach minimizes the burden on employees and students
when it is reasonably clear from context that the Title IX Coordinator
already knows about the student's pregnancy or related conditions.
With respect to the concern that Sec. 106.40(b)(2) may result in
the student learning about the Title IX Coordinator from multiple staff
members--which would only occur because the student, or a person who
has a legal right to act on behalf of the student, informed multiple
employees of the student's pregnancy or related conditions--the
Department acknowledges this possibility but believes it is important
to err on the side of the student receiving more, rather than less,
information about the rights and modifications that may be available to
them during their pregnancy. The Department concludes that this
provision is calibrated to enhance student access to this important
information, while avoiding redundancy, when possible, and respecting
student autonomy and privacy.
The Department disagrees with commenter concerns that the provision
is discriminatory, paternalistic, or encourages sex stereotyping. As
discussed above, an employee's action under the provision is driven
completely by the student or the student's legal representative and
contains no requirement that an employee act based on supposition
regarding the student's status. The provision focuses on students who
are pregnant or experiencing pregnancy-related conditions to avoid
having those students face obstacles to education related to those
conditions and associated with their sex characteristics, and thus
falls within the scope of Title IX under final Sec. 106.10. While
equal access to education for students who are not pregnant or
experiencing pregnancy-related conditions--such as a pregnant student's
partner, a student adopting a child, or a student whose close family
member is pregnant--is important, there is no need to immediately
inform such students, who are not pregnant or experiencing pregnancy-
related conditions, of how to obtain pregnancy-related rights under
Sec. 106.40(b)(3) that do not apply to them. The Department further
disagrees with the commenter's assertion that the provision will harm
student-faculty relationships; to the contrary, providing a simple
framework under Sec. 106.40(b)(2) for employees to respond to students
who disclose pregnancy or related conditions will strengthen such
relationships by increasing students' perceptions that staff care about
their needs.
The Department acknowledges commenters who shared a variety of
alternative or supplemental approaches for students to receive
information about the Title IX Coordinator, which some commenters also
felt would minimize the burden on recipients. The Department declines
to narrow the provision's application to employees who are ``student
facing'' because students may be more comfortable disclosing pregnancy
or related conditions to some employees over others for a variety of
reasons. This approach fosters recipients providing students with more
information rather than less, considering that commenters indicated--as
a general matter and in their own personal accounts--that students are
not currently aware of the Title IX prohibition on pregnancy
discrimination and the rights that follow from it. For instance, a
registrar may not be a ``student facing'' role like a teacher or a
coach, but a student might disclose to a registrar that they are
dropping a class because they are pregnant and will be delivering a
child during exam time. In that setting, it is important for the
registrar to inform the pregnant student about how to contact the Title
IX Coordinator if they want to ask for reasonable modifications or
about other recipient obligations that might allow them to stay
enrolled in the class.
The Department declines the suggestion to require recipients to
conduct training for students. This provision is focused on conveying
information, in a timely manner, to the subset of students who are
pregnant or experiencing pregnancy-related conditions while in school.
[[Page 33769]]
As to the suggestion that the Department require recipients to post
information about the availability of pregnancy-related modifications
on syllabi or websites, the Department does not think that website or
syllabi-type notifications, which are not directed at the individual
student, will alone effectively ensure that students know about these
important and time-sensitive Title IX rights. However, nothing in Title
IX or this part prohibits recipients from posting information about the
availability of pregnancy-related modifications on syllabi or websites.
Responding to concerns about the employee training burden, the
Department continues to view this burden as minimal. Under the final
regulations, employees are asked to share only two pieces of
information with students: (1) the Title IX Coordinator's contact
information; and (2) that the Title IX Coordinator can coordinate
specific actions to prevent sex discrimination and ensure the student's
equal access to the recipient's education program or activity. Training
on this matter, as required by Sec. 106.8(d)(1)(iii), will likely
require a limited amount of time and can be incorporated into existing
broader trainings on Title IX issues or other topics. For further
explanation of the training requirements of Sec. 106.8(d)(1)(iii), see
the discussion of that provision.
The Department understands commenters' interest in aligning
pregnancy and disability accommodation procedures. A recipient is
welcome to do so when consistent with the requirements of the final
Title IX regulations and other applicable laws. However, given the role
the Title IX Coordinator plays in ensuring the recipient's consistent
compliance with Title IX and their awareness of applicable regulations,
the Title IX Coordinator--or their designee as permitted under final
Sec. 106.8(a)(2)--remains the appropriate point of contact for
students under Sec. 106.40(b)(2). Likewise, it is inappropriate to
replace ``Title IX Coordinator'' with ``the recipient'' in the
provision, because telling a student to contact the recipient generally
does not provide clear direction as to an appropriate point of contact.
The final regulations will provide such clarity.
The Department disagrees that the provision is beyond the scope of
the Department's authority under Title IX. Pregnancy discrimination has
long been prohibited by Title IX and its implementing regulations, but
comments the Department received confirm that students do not know
about their rights in this context and do not know that Title IX
obligates recipients to help them ensure that they can fully access the
recipient's education program or activity even while pregnant or
experiencing pregnancy-related conditions. This provision is therefore
necessary to ensure that pregnant students--whose needs are by nature
time sensitive--can promptly avail themselves of available Title IX
resources. Thus, this provision is necessary to ``effectuate the
provisions of Title IX'' and is at the core of the Department's Title
IX regulatory authority. As explained in the July 2022 NPRM, 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. 87 FR 41513.
The Department has revised the title of this provision from
``Requirement for recipient to provide information'' to
``Responsibility to provide Title IX Coordinator contact and other
information'' because it is more explanatory and better informs readers
of the topic of the provision. The Department has also revised the
phrase ``unless the employee reasonably believes that the Title IX
Coordinator has been notified'' for clarity by removing the word
``already,'' and moved the phrase from the end of the sentence to the
middle for readability.
Changes: The Department has revised final Sec. 106.40(b)(2) to
clarify that unless the employee reasonably believes that the Title IX
Coordinator has been notified of the student's pregnancy or related
conditions, the employee's obligation to act begins when a student or a
person who has a legal right to act on behalf of the student
``informs'' the employee of such pregnancy or related conditions. The
Department has further revised final Sec. 106.40(b)(2) to clarify that
the employee's obligation is to promptly provide the student, or person
who has a legal right to act on behalf of the student, with the Title
IX Coordinator's contact information and inform that person that the
Title IX Coordinator can coordinate specific actions to prevent sex
discrimination and ensure the student's equal access to the recipient's
education program or activity. The Department revised the phrase
``unless the employee reasonably believes that the Title IX Coordinator
has been notified'' in Sec. 106.40(b)(2) by removing the word
``already,'' and moved the phrase from the end of the sentence to the
middle. The Department also revised the title of this provision from
``Requirement for recipient to provide information'' to
``Responsibility to provide Title IX Coordinator contact and other
information.''
4. Section 106.40(b)(3) Pregnancy or Related Conditions--Specific
Actions To Prevent Discrimination and Ensure Equal Access
Timelines
Comments: Some commenters asked the Department to clarify how much
notice a student must provide to obtain reasonable modifications and
other steps in proposed Sec. 106.40(b)(3) and how promptly the
recipient must respond to such requests. Some commenters urged that a
student be required to provide notice in a timeframe that is
reasonable, allows the recipient sufficient time to prepare and act on
the student's request, and considers the complexity and logistics of
the task; and that absent such timely notice, a recipient has no
obligation to act.
Discussion: As set out in final Sec. 106.40(b)(3) and consistent
with the proposed regulations in the July 2022 NPRM, 87 FR 41520, a
recipient must promptly take the steps specified in Sec. 106.40(b)(3),
including implementing reasonable modifications. Determining promptness
in each case is a fact-specific inquiry that depends on a variety of
factors, including the needs of the student, the substance and timing
of the requested modification, and the characteristics of the education
program or activity. A recipient should consider the importance to a
student of accessing reasonable modifications to ensure full
participation in the recipient's education program or activity, and
whether the absence of a modification to a policy, practice, or
procedure could impede a student's academic or educational progress. As
explained in greater detail in the discussion of Sec.
106.40(b)(3)(ii)(A), a recipient is not required to make a modification
that the recipient can demonstrate would fundamentally alter the nature
of its education program or activity.
The Department agrees that it would be helpful for students who
seek reasonable modifications to notify the Title IX Coordinator or
their designee as early as possible to ensure that the recipient has
enough time to review their request and provide a reasonable
modification. However, no matter when a student notifies the Title IX
Coordinator of pregnancy or related conditions or seeks any measures
under Sec. 106.40(b)(3)(ii)-(v), a recipient must
[[Page 33770]]
respond promptly and effectively to ensure equal access to the
recipient's education program or activity consistent with the
requirements of Title IX. Students may not be able to provide notice to
a recipient related to pregnancy far in advance of when specific
actions consistent with Sec. 106.40(b)(3) are needed for various
reasons, including because the need for specific actions may occur
without advance warning, the student may need time to decide whether to
disclose their pregnancy or related condition to their school, or the
student may lack awareness of a recipient's process.
The Department notes that many modifications can be offered and
implemented with relatively little administrative effort on the part of
the recipient, such as the examples provided in Sec.
106.40(b)(3)(ii)(C) of allowing the student to drink, eat, sit, or
stand during class as needed. There is also no prohibition on a student
returning to the Title IX Coordinator after the recipient has taken
initial steps under final Sec. 106.40(b)(3)(ii)-(v) if a further need
emerges related to pregnancy or related conditions. In such a case, the
recipient must take further action consistent with Sec.
106.40(b)(3)(ii)-(vi).
Changes: The Department has revised Sec. 106.40(b)(3) to state
that a recipient must take specific actions under paragraphs (b)(3)(i)
through (vi) to promptly and effectively prevent sex discrimination and
ensure 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 the student's
pregnancy or related conditions.
Staffing Flexibility and Effectiveness
Comments: Some commenters supported the proposed regulations--which
would have required that reasonable modifications because of pregnancy
or related conditions ``be effectively implemented, coordinated, and
documented by the Title IX Coordinator''--because they would have made
clear that the Title IX Coordinator has the authority and
responsibility to ensure that reasonable modifications are provided to
students.
Several commenters suggested that the Department allow recipients
greater flexibility regarding which employees oversee compliance with a
recipient's obligations to students who are pregnant or experiencing
pregnancy-related conditions. These commenters' reasons included that
the Title IX Coordinator's job has become too large for one person;
other staff at the recipient may be more knowledgeable about the
students or available resources; a Title IX Coordinator may have a
conflict of interest in both receiving and investigating reports of
discrimination related to pregnancy or related conditions; and
pregnancy protection under some local laws allows greater staffing
flexibility.
Some commenters asked the Department to clarify that the Title IX
Coordinator's responsibility is to coordinate, rather than implement,
the steps required in the proposed provision. Some commenters requested
that the Department clarify that the responsibilities in proposed Sec.
106.40(b)(3) are the recipient's, not the Title IX Coordinator's
individually.
Discussion: Recognizing the need for clarity regarding the role of
the Title IX Coordinator in their official capacity, and the need for
staffing flexibility in carrying out these provisions, the Department
has revised final Sec. 106.40(b)(3) to state that the recipient is
responsible for taking the actions specified in that paragraph once a
student (or a person with the legal right to act on the student's
behalf) has notified the Title IX Coordinator of a student's pregnancy
or related conditions. The final regulations at Sec. 106.40(b)(3)
provides that the recipient must do so promptly and effectively.
The Department has further amended the provision to state that the
Title IX Coordinator must be responsible for coordinating the actions.
Consistent with final Sec. 106.8(a)(2), the Department clarifies that
a recipient may delegate, or permit a Title IX Coordinator to delegate,
specific duties to one or more designees. Accordingly, recipients have
flexibility to choose the staff they think are most appropriate to
carry out duties under Sec. 106.40(b)(3), provided that the Title IX
Coordinator retains ultimate oversight for ensuring that the recipient
complies with Sec. 106.40(b)(3)'s requirements. The Department agrees
that providing recipients this flexibility will enable them to use
resources most effectively to serve students in a way that will be
responsive to the needs of their school communities. To the extent that
a recipient wishes to utilize other administrators or departments to
carry out some tasks required under Sec. 106.40(b)(3), they may do so
provided the work is coordinated with oversight of the Title IX
Coordinator and performed consistent with the requirements of the final
regulations.
Recognizing that each of the steps under Sec. 106.40(b)(3) (as
adopted in these final regulations) is equally important, the
Department further revised the requirement that a recipient's actions
be effective--which the Department had previously proposed to include
as an express term in Sec. 106.40(b) only in connection with
reasonable modifications--to apply to all the recipient's actions under
final Sec. 106.40(b)(3). This requirement ensures that recipients and
members of their communities understand that the recipient's actions,
including providing reasonable modifications and voluntary leave
because of pregnancy or related conditions, and access to lactation
spaces, must be fully and effectively implemented and serve their
intended purposes under the final regulations to prevent sex
discrimination and ensure equal access to the recipient's education
program or activity. Effectiveness requires, for example, ensuring that
all relevant school staff are complying with their role in carrying out
Sec. 106.40(b)(3)(ii)-(vi) and that there are no other structural or
resource barriers to compliance. For example, if a recipient provides
the student a reasonable modification to use the restroom when needed
during the student's high school classes, but the student's science
teacher refuses to allow the student to do so, the reasonable
modification has not been effectively implemented by the recipient, and
the recipient must remedy the situation to ensure effective
implementation. Likewise, if the recipient provides a student with an
access code to a locked lactation space, but the student cannot enter
because the keypad is broken, this is ineffective implementation that
the recipient must remedy.
Responding to a commenter's concern that the regulations as revised
conflict with a city regulation \82\ that requires a school principal
or their designee to take particular steps once they become aware that
a student is pregnant or has a child, the Department notes that the
revisions here make clear that recipients can delegate certain duties
of the Title IX Coordinator, such as to a school principal, consistent
with Sec. 106.8(a)(1) and (2). With respect to bias, the Department
disagrees that there is inherent bias in a Title IX Coordinator both
receiving and investigating a complaint of pregnancy discrimination.
However, if for some other reason a Title IX Coordinator who receives a
complaint of pregnancy discrimination had a conflict of interest or
bias for or against complainants or respondents
[[Page 33771]]
generally or an individual complainant or respondent, the Title IX
Coordinator would be prohibited from serving as an investigator or
decisionmaker in connection with that particular complaint consistent
with the requirements of final Sec. 106.45(b)(2), and the recipient
would be responsible for ensuring the substitution of an alternate
appropriate individual. In addition, final Sec. 106.8(d)(2)(iii) and
(4) require that a Title IX Coordinator receive training on bias, which
is designed to ensure that any Title IX Coordinator in this situation
is able to identify bias and take the necessary steps to address it.
---------------------------------------------------------------------------
\82\ The commenter cited Chancellor's Regulation A-740, Pregnant
and Parenting Students and Reproductive Health Privacy (Nov. 13,
2008), https://www.nyc.gov/html/acs/education/pdf/A740%20Pregnant%20and%20Parenting%20students.pdf.
---------------------------------------------------------------------------
Changes: As noted above, the Department has revised Sec.
106.40(b)(3) to clarify that it is the recipient's obligation to take
the specific actions under paragraphs (b)(3)(i) through (vi) to
promptly and effectively prevent sex discrimination and ensure 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 the student's pregnancy
or related conditions. The Department has further revised Sec.
106.40(b)(3) to clarify that the Title IX Coordinator must coordinate
these actions.
5. Section 106.40(b)(3)(i) Pregnancy or Related Conditions--
Responsibility To Provide Information About Recipient Obligations
Comments: Commenters expressed several reasons for supporting the
proposed requirement at Sec. 106.40(b)(3) and (3)(i) that once a
student, or a person who has a legal right to act on that student's
behalf, notifies the Title IX Coordinator of the student's pregnancy or
related conditions, the Title IX Coordinator must inform the student of
the recipient's obligations related to pregnancy or related conditions.
Commenters' reasons included that the provision would clarify
recipients' responsibilities to these students and assist recipients in
providing them equal access to education; remove barriers to education;
and be consistent with similar notice and antidiscrimination laws in
many States. Commenters noted that the requirement is particularly
important considering restrictive State abortion laws that may drive up
the numbers of students who are pregnant or experiencing pregnancy-
related conditions. Commenters noted that even though Title IX has long
prohibited discrimination against pregnant and parenting students as
sex discrimination, many students and employees are unaware of their
rights. Several commenters shared personal accounts of how their lack
of awareness of their rights as pregnant or parenting students led them
to lose instructional time and other educational opportunities.
Some commenters asked whether instead of, or in addition to, the
requirements of proposed Sec. 106.40(b)(3) and (b)(3)(i), the
Department could require recipients to communicate procedures related
to pregnancy or related conditions through written procedures, or
website or syllabus statements.
Some commenters raised concerns about students' privacy and, for
example, urged that the regulations protect students from incurring
civil or criminal penalties related to pregnancy or related conditions,
and for clarification that disciplining or referring students to law
enforcement on these bases violates Title IX.
Some commenters suggested revising proposed Sec. 106.40(b)(3) for
what commenters viewed as consistency with Section 504 and the ADA, for
example, by only requiring the Title IX Coordinator to inform a student
of their rights or take other action after a student follows internal
processes and asks for assistance related to pregnancy or related
conditions; or using a single process for students with disabilities
and students who are pregnant and experiencing pregnancy-related
conditions.
Other commenters asked the Department to revise the proposed
regulations to require that recipients tailor the information they are
required to provide to a student's specific request, for example, by
excluding lactation information when a student reports miscarriage.
Because the proposed regulations listed the application of
grievance procedures under Sec. 106.45, and if applicable Sec.
106.46, as one of several required topics for the Title IX Coordinator
to inform the student about upon notification of pregnancy, one
commenter asked the Department to clarify with whom students should
make a complaint and whether such procedures were prompt enough to
address pregnancy issues.
Some commenters stated that the requirement to provide information
would be burdensome and non-beneficial. Some commenters believed the
provision exceeds the scope of Title IX and requires congressional
authorization.
Other commenters asked the Department to undertake a separate
rulemaking to address students who are pregnant or experiencing
pregnancy-related conditions, referring to the complexity of issues
relating to pregnancy, student privacy, and risk to recipients.
Discussion: The Department agrees with commenters who emphasized
the importance of the proposed requirements regarding steps a recipient
must take upon notice of a student's pregnancy or related conditions,
including informing the student of the recipient's obligations to
prevent discrimination and ensure equal access. The Department agrees
with commenters' statements that informing a student of the recipient's
obligations directly will remove barriers to education and increase the
likelihood of a student successfully remaining in school.
The Department acknowledges the variety of alternative or
supplemental approaches commenters shared, by which students could
receive information about the recipient's obligations under Sec.
106.40(b)(3)(i)--including through written procedures or website or
syllabus statements--which some commenters also felt would minimize the
burden on recipients. As noted above, the Department does not think
that website or syllabi-type notifications, which are not directed at
the individual student, are alone sufficient to ensure that students
know about these important and time-sensitive Title IX rights. However,
nothing in Title IX or this part prohibits recipients from posting
information about the availability of pregnancy-related modifications
on syllabi or websites.
Further, the Department agrees with the many commenters expressing
concern about the privacy of student records and other information a
recipient obtains related to Title IX compliance. In response to
commenter concerns, the Department revised final Sec. 106.44(j) to
prohibit the disclosure of personally identifiable information obtained
while carrying out a recipient's Title IX obligations, with some
exceptions. To ensure that a student and their legal representative are
aware of this provision, the Department has revised Sec.
106.40(b)(3)(i) to require that the Title IX Coordinator inform them of
this provision. The disclosure restrictions are explained more fully in
the discussion of Sec. 106.44(j). As explained in the discussion of
final Sec. 106.2 regarding the definition of ``pregnancy or related
conditions'' and its application to termination of pregnancy, a
recipient may not punish or retaliate against a student solely for
seeking or obtaining an abortion.
Responding to the comment that a recipient should provide a student
[[Page 33772]]
information about their rights only once they ask for assistance and
exhaust the remainder of a recipient's administrative requirements, the
Department declines to do so for the same reasons discussed in
connection with a similar comment regarding Sec. 106.40(b)(2).
Specifically, Sec. 106.40(b)(3)(i) does not require students or their
families to have any advance knowledge of a recipient's available
supports, or to invoke specific words or requests, for the recipient to
be required to provide them with information about the recipient's
obligations under Title IX to students experiencing pregnancy or
pregnancy-related conditions. This approach ensures that members of a
recipient's community have access to necessary support; promotes the
right of the student and the student's legal representatives to
determine if, when, and what information to share with a recipient
regarding a student's pregnancy or related conditions; and maximizes
administrative efficiency by recognizing that the Title IX Coordinator
is best positioned to coordinate the efficient provision of
information. For these reasons, the recipient should inform the student
or person with a legal right to act on the student's behalf of the
student's relevant rights as soon as they notify the Title IX
Coordinator of the student's pregnancy or related conditions to ensure
that the student (and their legal representative, as applicable) has
complete and timely information. The Department notes that this
paragraph discusses only the obligation of the recipient to ensure that
the Title IX Coordinator provides information to a student or the
person who has a legal right to act on behalf of the student, upon
notification of pregnancy under Sec. 106.40(b)(3)(i). The separate
responsibility of the recipient to ensure that all employees provide
information about the Title IX Coordinator to a student or their legal
representative regarding pregnancy or related conditions, when the
student or their legal representative informs any employee of the
student's pregnancy or related conditions, is addressed in the
discussion of Sec. 106.40(b)(2).
The Department understands the commenter's interest in allowing a
recipient to have a single process, or similar processes, to address
both pregnancy and disability. When recipients can use the same or
similar processes for pregnancy and disability in a manner that is
consistent with the requirements of these final Title IX regulations
and applicable disability laws, recipients may do so. For example, the
same staff member may be assigned to provide students with notice of
their rights related to pregnancy and disability; however, staff in
this role must comply with Sec. 106.40(b)(3)(i) in addition to any
other relevant requirements under Section 504, the ADA, or other
applicable disability laws, and the Title IX Coordinator must retain
ultimate oversight over the recipient's responsibilities under Title IX
and this part, consistent with Sec. 106.8(a)(1).
Additionally, the Department declines the proposal to limit the
information a recipient must provide to a student upon notice of the
student's pregnancy or related conditions. It is essential that a
recipient inform the student, and the student's legal representative,
as applicable, of the recipient's obligations under Sec. Sec.
106.40(b)(1)-(5) and 106.44(j) and provide the recipient's notice of
nondiscrimination under Sec. 106.8(c)(1) for several reasons. First,
doing so will provide the student with the broadest possible amount of
information upon which to make informed choices about next steps,
including information about reasonable modifications, voluntary leave,
access to lactation space, the general right not to be discriminated
against on the basis of pregnancy or related conditions, and limits on
certifications to participate in the recipient's education program or
activity. Second, the regulations will relieve the recipient of having
to decide unilaterally and subjectively what information should be
shared. Third, the regulations will prevent a recipient from depriving
a student of information based on a staff member's own misjudgment or
lack of awareness about the student's particular pregnancy or needs.
For example, a student who has miscarried may need or want information
about access to a lactation space, because a student can lactate
following miscarriage and may wish to use such a space to express
breast milk. Requiring a recipient to provide information about all of
a recipient's obligations under Sec. Sec. 106.40(b)(1)-(5) and
106.44(j) and to provide the recipient's notice of nondiscrimination
under Sec. 106.8(c)(1) does not obligate students to take any action
after receiving the information but empowers students to make the most
appropriate choices based on their own unique needs.
In connection with the commenter's question regarding the
application of grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, to pregnancy-related issues, and resolving
pregnancy-related matters quickly, the Department clarifies that these
procedures still apply. However, for simplicity, rather than list a
number of discrete items that the recipient must disclose to the
student as it did in the proposed regulations, the Department revised
final Sec. 106.40(b)(3)(i) to state that the recipient must inform the
student and their legal representative (as applicable) of the
recipient's obligations under Sec. Sec. 106.40(b)(1)-(5) and 106.44(j)
and provide the recipient's notice of nondiscrimination under Sec.
106.8(c)(1). The notice of nondiscrimination under Sec. 106.8(c)(1)
contains the recipient's nondiscrimination statement and contact
information for the Title IX Coordinator, explains how to locate the
recipient's Title IX policy and grievance procedures, and provides
information about how to report sex discrimination.
Further explaining how the final regulations function to resolve
concerns of pregnancy-related discrimination, the Department notes that
if a student notifies the recipient of the recipient's failure to
implement a reasonable modification or make a lactation space
available, a recipient is required to take additional steps consistent
with Sec. 106.44(f)(1) to comply with its Title IX obligation to
ensure that its education program or activity is free from
discrimination on the basis of sex. Such steps will vary based on the
facts and circumstances. For example, if a complaint is made, a
recipient's grievance procedures under Sec. 106.45 (and Sec. 106.46,
if the situation arises at a postsecondary institution and involves
sex-based harassment), would guide the recipient's investigation and
resolution of the complaint. If there is a determination that sex
discrimination occurred, the Title IX Coordinator must coordinate the
provision and implementation of remedies to a complainant 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. See Sec. 106.45(h)(3). Additionally,
consistent with Sec. 106.44(g), a student may need and a recipient
must provide supportive measures, as appropriate, to restore or
preserve access to the recipient's education program or activity in the
absence of a complaint or during the pendency of grievance procedures.
Finally, responding to concerns about timeliness of a recipient's
response to issues regarding reasonable modifications, the Department
emphasizes that under Sec. 106.40(b)(3), a recipient always remains
responsible for taking prompt and effective steps to prevent sex
discrimination once the Title IX Coordinator is notified of a
[[Page 33773]]
student's pregnancy or related conditions, including through timely
steps such as the provision of reasonable modifications, leave, and
lactation space. Likewise, a recipient with knowledge of conduct that
reasonably may constitute sex discrimination in its education program
or activity--such as a complaint that actions required under Sec.
106.40(b)(3) have not been appropriately taken--must respond promptly
and effectively under Sec. 106.44(a) and (f)(1).
The Department disagrees that the requirements of final Sec.
106.40(b)(3) or (3)(i) are unduly costly or burdensome. Specifically,
the requirement that a recipient inform the student of its obligations
under Sec. 106.40(b)(3)(i) could be done in the context of a single
conversation, or, if appropriate to the age and ability of the student,
in a standardized written communication. The Department explains in
detail the potential costs and benefits of the final regulations
related to pregnancy or related conditions in the Regulatory Impact
Analysis.
Moreover, the Department disagrees that the provision is beyond the
scope of the Department's authority under Title IX or requires separate
congressional authorization. The Supreme Court has recognized that the
Department has broad regulatory authority under Title IX to issue
regulations that it determines will best effectuate the purpose of
Title IX, and to require recipients to take administrative actions to
effectuate the nondiscrimination mandate of Title IX. See Gebser, 524
U.S. at 292; 20 U.S.C. 1682. Since 1975, the Department has required
recipients to provide students with information about their rights
under Title IX. See, e.g., 40 FR 24128 (codified at 45 CFR 86.8
(1975)); 34 CFR 106.8(c) (current). Section 106.40(b)(3)(i) expands
upon this longstanding requirement in a manner that is tailored to a
student's need for information in the relevant circumstance. Ensuring
that students (or those who have a legal right to act on their behalf)
have information about the reasonable modifications to which they are
entitled is necessary to effectuate that mandate. In addition, the
Department declines to conduct a separate rulemaking related to
pregnancy or related conditions. The Department's clarification of the
pregnancy-related regulations under Title IX at this time, aided by the
input of commenters, is justified and appropriate. That the provisions
related to pregnancy discrimination in the final regulations were
proposed alongside other provisions implementing Title IX in no way
diminished the public's notice of, and ability to comment on, those
proposed provisions.
The Department notes that it has added ``Responsibility to provide
information about recipient obligations'' as the title of this
provision to assist readers in locating the topic more easily.
Changes: The Department has revised Sec. 106.40(b)(3)(i) to
require the recipient to provide information about the recipient's
obligations under Sec. Sec. 106.40(b)(1) through (5) and 106.44(j), in
addition to providing the recipient's notice of nondiscrimination under
Sec. 106.8(c)(1). The Department further added a title to Sec.
106.40(b)(3)(i) of ``Responsibility to provide information about
recipient obligations.''
6. Section 106.40(b)(3)(ii) Pregnancy or Related Conditions--Reasonable
Modifications
General Support
Comments: The Department notes that proposed Sec. 106.40(b)(3)(ii)
and (b)(4) have been revised and redesignated as Sec. 106.40(b)(3)(ii)
in the final regulations to consolidate into one paragraph provisions
regarding a recipient's obligation to provide a student with reasonable
modifications based on pregnancy or related conditions, and the
following comment summaries and discussion refer to these provisions as
Sec. 106.40(b)(3)(ii).
Multiple commenters supported reasonable modifications for a
student who is pregnant or experiencing pregnancy-related conditions as
appropriate and necessary to allow such a student to succeed
educationally. Several commenters stated that the reasonable
modifications provision would clarify the protections that a recipient
must provide to a student who is pregnant or experiencing pregnancy-
related conditions and how a student can request reasonable
modifications because of pregnancy or related conditions. Some
commenters stated that pregnant students' civil rights are violated in
ways other than outright exclusion such as by not providing necessary
supports. Some commenters also noted that the proposed regulations
would be consistent with many State antidiscrimination laws related to
pregnancy. Several commenters supported Sec. 106.40(b)(3)(ii) as
particularly important for certain groups. Some commenters asked that
the final regulations use terminology that provides reasonable
modifications to all students based on pregnancy or related conditions.
Several commenters provided examples of how recipients' denials of
reasonable modifications have forced students who are pregnant or
experiencing pregnancy-related conditions to choose between their
health and education, including a recipient or school official refusing
to modify an exam schedule or grading policy when a student gave birth
during final exams, denying a student's request for a larger desk,
failing to accommodate a student's need to take lactation breaks,
requiring a student to return to school days after having an emergency
cesarean section despite not being able to drive or carry books,
telling a student with a high-risk pregnancy to schedule medical
appointments outside of class time despite having a note from their
physician, encouraging a student to drop a course due to pregnancy,
refusing to provide academic adjustments or excused absences, and
denying basic modifications to protect pregnant students' health,
including additional bathroom breaks and access to remote instruction
or previously recorded classes.
Some commenters appreciated the reasonable modification provision
because students who are pregnant or experiencing pregnancy-related
conditions are often overlooked in discussions of a recipient's Title
IX obligations. One commenter asserted that a student who is pregnant
or experiencing pregnancy-related conditions will often need only
modest accommodations and stated that when a recipient refuses to make
these modifications, a student's education and health suffer.
Discussion: The reasonable modification provision of the final
regulations under Sec. 106.40(b)(3)(ii) will better fulfill Title IX's
mandate with respect to students who are pregnant or experiencing
pregnancy-related conditions. The specific examples provided by
commenters are compelling, and together with the Department's Title IX
enforcement experience, affirm the importance of this provision.
The Department agrees that recipients have the obligation under
Title IX to provide reasonable modifications to policies, practices, or
procedures for students who are pregnant or experiencing pregnancy-
related conditions and that clarifying this responsibility will
facilitate compliance with the nondiscrimination mandate of the
statute. Accordingly, the Department has revised the proposed
regulations to clarify that a recipient is ultimately responsible for
taking specific actions to facilitate the reasonable modification
[[Page 33774]]
process when a student notifies the Title IX Coordinator that they are
pregnant or experiencing pregnancy-related conditions.
Changes: Proposed Sec. 106.40(b)(4) has been revised, consolidated
with proposed Sec. 106.40(b)(3)(ii), and redesignated as Sec.
106.40(b)(3)(ii)(A)-(C) in the final regulations to list in one
paragraph the recipient's obligations to a student regarding reasonable
modifications for pregnancy or related conditions. Final Sec.
106.40(b)(3) now states that the Title IX Coordinator must coordinate
actions under paragraphs (b)(3)(i) through (vi), and final Sec.
106.40(b)(3)(ii) now specifically states that a recipient must make
reasonable modifications to the recipient's policies, practices, or
procedures as necessary to prevent sex discrimination and ensure equal
access to the recipient's education program or activity.
Process for Providing Reasonable Modifications
Comments: The Department notes that proposed Sec. 106.40(b)(4)(i)-
(iii) have been revised and redesignated as Sec. 106.40(b)(3)(ii)(A)-
(C) in the final regulations, and the following comment summaries and
discussion refer to the provision as Sec. 106.40(b)(3)(ii)(A)-(C).
Some commenters supported the Department's proposed process for
providing students with reasonable modifications because of pregnancy
or related conditions, because it would prevent a recipient from
forcing a student to take leave or to accept a particular modification.
One commenter stated that Sec. 106.40(b)(3)(ii)(A) would properly
place the burden on the recipient to show that a modification would
fundamentally alter a program or activity and would still require the
recipient to identify a suitable alternative modification. Another
commenter believed that the required interactive process would
facilitate student self-advocacy and foster collaboration between the
student and recipient.
In contrast, several commenters expressed concern that the proposed
regulations would encourage a recipient to deny a student's requested
modification. One commenter, a legal services provider, characterized
the proposed regulations as a regression from the Department's prior
guidance, and cited the 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 (June 2013) (2013
Pregnancy Pamphlet), https://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf, which, the commenter stated, required a recipient to
excuse any medically necessary absence and was implemented by
recipients nationwide for decades. The commenter stated that they often
receive calls from students who were denied minimal time off from
school, such as missing two or three classes in a semester, even while
facing grave health complications and staying caught up on coursework.
Another commenter asked the Department to clarify whether a student has
any burden in identifying how a recipient could implement a requested
modification.
Several commenters asked the Department to clarify how leave that
would fall under reasonable modifications--such as intermittent
absences to attend medical appointments, time to address lactation
needs, or bathroom breaks--would be handled. Among other things, they
asked for clarification about how to ensure that students would not be
penalized for accessing such modifications; what discretion a recipient
has to deny such absences or breaks because they are ``reasonable
modifications'' under Sec. 106.40(b)(3)(ii) rather than absences that
must be granted under Sec. 106.40(b)(3)(iv); and whether the final
regulations adopt a presumption that such absences or breaks are
reasonable modifications.
Other commenters asked for clarification on how reasonable
modifications because of pregnancy or related conditions should be
implemented, including whether ``reasonable'' means that a modification
cannot impose an excessive burden on the recipient regardless of
whether it would fundamentally alter the education program or activity.
Some commenters asserted that Sec. 106.40(b)(3)(ii) would not
articulate any standard by which a student must demonstrate, or a
recipient must evaluate, what reasonable modification a student needs
to prevent discrimination and ensure equal access to an education
program or activity. Another commenter asked the Department to confirm
that recipients have flexibility in providing modifications to students
who are pregnant or are experiencing pregnancy-related conditions.
Commenters asked the Department to clarify when a request for a
modification is properly denied and a recipient's obligations in such a
circumstance.
Some commenters urged the Department to modify the regulations to
require a recipient to identify an alternate modification that would
meet the student's needs if a requested modification is unavailable or
ineffective. Other commenters recommended that the Department clarify
that if a modification is ineffective or fundamentally alters an
education program or activity, the recipient must engage in a good
faith, interactive dialogue to identify another modification that would
meet the student's needs.
Finally, some commenters urged the Department to modify the
regulations to explicitly prohibit a recipient from forcing a student
to accept an unwanted or unneeded modification. They stated that such a
provision was necessary because it is unclear whether the use of
``voluntary'' in the proposed regulations refers to a student's
voluntary acceptance of a modification or a recipient's voluntary
provision of a modification.
Discussion: As stated in the July 2022 NPRM, 87 FR 41521, and as
the Department reaffirms here, 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. The Department
acknowledges commenters who asserted that Sec. 106.40(b)(3)(ii) should
prevent a recipient from forcing a student to accept a particular
modification, should place the burden of demonstrating that a
particular modification would fundamentally alter the nature of an
education program or activity on the recipient before denying a
requested modification, and should require consultation with the
student before a recipient offers or implements a particular
modification. The Department clarifies and confirms that the final
regulations operate consistently with these suggestions.
As discussed in the July 2022 NPRM and clarified in the final
regulations, when considering the range of available reasonable
modifications, a recipient must consider a student's needs on an
individualized basis, as situations will vary based on unique factors
such as the age of the student, the type of education program or
activity, the student's health needs, and other circumstances. 87 FR
41522-23. Under the final regulations, a recipient is required to
consider all reasonable modifications based on pregnancy or related
conditions as necessary to prevent sex discrimination and ensure equal
access to the recipient's education program or activity in each
student's case rather than adopt a generalized approach for all
students who are pregnant or who are experiencing pregnancy-related
[[Page 33775]]
conditions. See Sec. 106.40(b)(3)(ii)(A). While the recipient's
obligations are initiated when the student or 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, it is not incumbent
on the student or the person with a legal right to act on behalf of the
student to identify or request a specific possible reasonable
modification. See 87 FR 41524. Instead, if a student seeks a reasonable
modification, a recipient must consult with the student to determine
the student's individualized needs and offer options that will best
prevent sex discrimination and ensure equal access. See Sec.
106.40(b)(3)(ii)(A); 87 FR 41524. Identifying a reasonable modification
will be a collaborative effort between the student and the recipient,
but, under Sec. 106.40(b)(3) and (3)(ii)(A) and (B), it will be the
recipient's duty to offer any reasonable modifications, and--if
accepted by the student--promptly and effectively implement them. See
87 FR 41524. As noted, the Department's final regulations ensure that a
student will receive a modification only on a voluntary basis, and that
a student cannot be required to accept a particular modification. See
Sec. 106.40(b)(3)(ii)(A), (B); 87 FR 41524. The student can decide
whether to accept the reasonable modification offered by the recipient,
request an alternative reasonable modification, or remain in their
program under the status quo. See Sec. 106.40(b)(3)(ii)(A)-(B).
Further, the Department clarifies that if there are a range of
reasonable modifications that are appropriate to a student's
individualized needs under the circumstances that prevent sex
discrimination and ensure equal access to the education program or
activity, Sec. 106.40(b)(3)(ii) affords a recipient discretion to
offer a student the full range of options or to choose to offer one or
more preferred options. If a student declines an offered reasonable
modification that is based on the student's individualized needs and
that would prevent sex discrimination and ensure equal access, the
recipient is not required to determine whether there are other
reasonable modifications based on that specific need, even if there are
other reasonable modifications that could be offered. A recipient
would, however, be responsible to offer and make reasonable
modifications consistent with final Sec. 106.40(b)(3)(ii)(A) and (B)
if any new or additional needs arise.
As discussed in the July 2022 NPRM and further clarified in the
text of final Sec. 106.40(b)(3)(ii)(A), a modification that a
recipient can demonstrate would fundamentally alter the nature of its
education program or activity is not a reasonable modification. See 87
FR 41523; see also Alexander v. Choate, 469 U.S. 287, 300 (1985)
(detailing ``fundamental alteration[s]'' in the Section 504 context).
The recipient has the burden of demonstrating that a modification
fundamentally alters the nature of the recipient's education program or
activity or is otherwise unreasonable. A recipient has no obligation to
offer or make such an unreasonable modification under final Sec.
106.40(b)(3)(ii)(A).
Demonstrating that a particular or requested action is not a
reasonable modification does not, however, relieve a recipient of its
obligation to otherwise comply with Sec. 106.40(b)(3)(ii)(A) and (B)
by offering, and if the student accepts, implementing reasonable
modifications to policies, practices, or procedures as necessary to
prevent sex discrimination and ensure equal access to the recipient's
education program or activity. Because Sec. 106.40(b)(3)(ii) requires
a recipient to consider the provision of a modification based on each
student's individualized needs, the determination whether a
modification is reasonable will necessarily be a fact-specific inquiry
that considers, for example, whether the student has a preferred
modification, whether alternative modifications exist, and the
feasibility and effectiveness of the modification in addressing the
student's specific needs.
Jurisprudence outlining modifications that would be unreasonable or
rise to the level of a fundamental alteration to the nature of the
program in the educational and disability context is illustrative. For
example, courts have found a requested modification to fundamentally
alter a recipient's education program or activity if it would
completely waive requirements that demonstrate mastery of a particular
field of study, see Brief v. Albert Einstein Coll. of Med., 423 F.
App'x 88, 91-92 (2d Cir. 2011) (citing Powell v. Nat'l Bd. of Med.
Exam'rs, 364 F.3d 79, 88 (2d Cir. 2004)); Zukle v. Regents of Univ. of
Calif., 166 F.3d 1041, 1051 (9th Cir. 1999); Kaltenberger v. Ohio Coll.
of Podiatric Med., 162 F.3d 432, 436-37 (6th Cir. 1998); or jeopardize
an institution's accreditation, see Harnett v. Fielding Graduate Inst.,
400 F. Supp. 2d 570, 580 (S.D.N.Y. 2005), aff'd in part, rev'd in part
& remanded, 198 F. App'x 89 (2d Cir. 2006).
Similarly, courts have held that modifications that would
completely waive requirements that demonstrate academic competency,
such as clinical components or examinations, were unreasonable.
McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir.
1998); Doherty v. S. Coll. of Optometry, 862 F.2d 570, 575 (6th Cir.
1988) (holding that waiver of requirement that demonstrated proficiency
was not a reasonable modification); Darian v. Univ. of Mass. Bos., 980
F. Supp. 77, 89-90 (D. Mass. 1997) (finding a student's request to not
see patients or attend required clinical program to be unreasonable).
In contrast, courts have indicated that a school may reasonably
accommodate a student with a disability by allowing a student to defer
or make up an examination at a later time, permitting a student to
repeat one or more classes, providing a student with tutoring, taped
lectures, and the like, and allowing a student to take untimed
examinations, see Wynne v. Tufts Univ. Sch. of Med. (Wynne II), 976
F.2d 791, 795-96 (1st Cir. 1992); modifying a student's seating
arrangement, see Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1385
(3d Cir. 1991); or reducing or modifying a student's duties in a
required clinical course, or deferring to another semester completion
of a program's clinical requirement, see Darian, 980 F. Supp. at 88-89.
As a general matter, the Department notes that in the context of
Federal disability law, courts have distinguished between modifications
that are reasonable and those that rise to the level of a fundamental
alteration to the nature of the program by analyzing whether the
modification would waive academic requirements rather than providing a
student another means to comply with academic requirements. The 2008
amendments to the ADA also affirm that consideration of academic
requirements fits within the reasonable modifications framework. See 42
U.S.C. 12201(f) (``Nothing in this chapter alters the provision of
section [12182] (b)(2)(A)(ii) [. . .] specifying that reasonable
modifications in policies, practices, or procedures shall be required,
unless an entity can demonstrate that making such modifications in
policies, practices, or procedures, including academic requirements in
postsecondary education, would fundamentally alter the nature of the
goods, services, facilities, privileges, advantages, or accommodations
involved.'').
This case law is consistent with the examples of reasonable
modifications that were identified in the July 2022 NPRM, such as
providing a student who must be intermittently absent from class to
attend morning prenatal appointments with the opportunity to
[[Page 33776]]
make up lost class time without penalty or offering the student the
opportunity to switch to a comparable course that met in the afternoon
(as long as either arrangement would be appropriate to the pregnant
student's individualized need and would not fundamentally alter the
nature of the recipient's education program or activity). 87 FR 41524.
In contrast, a student's request to waive their entire senior year and
graduate without those credits would likely be a fundamental alteration
of the nature of the recipient's program. Id. But a recipient would
still be required to offer reasonable modifications sufficient to
prevent sex discrimination and ensure equal access to its education
program or activity, such as by allowing the student to complete the
required number of credits at a slower pace or granting an extension to
complete certain tests or assignments. Id. Consistent with this
framework, many of the modifications referenced by commenters--such as
allowing a student to miss class to attend medical appointments with
the opportunity to make up exams or coursework, allowing a student to
take lactation or bathroom breaks during class without penalty, or
providing a larger desk--would be more akin to modifications that
provide students an alternative means to access an education program or
activity rather than a complete waiver of academic requirements. And it
would likely follow that a recipient would have difficulty
demonstrating that such modifications would fundamentally alter the
nature of its education program or activity or otherwise be
unreasonable.
For these reasons, the Department disagrees with commenters'
assertion that Sec. 106.40(b)(3)(ii) encourages recipients to deny
reasonable modification requests. Rather, consistent with cases
construing Federal disability law and the examples provided in the July
2022 NPRM, recipients must meet a rigorous standard to demonstrate that
a particular or requested modification under Sec. 106.40(b)(3)(ii)(A)
would be a fundamental alteration to the nature of a program or
activity. To be sure, in the context of Federal disability law, courts
have afforded recipients some deference in ``genuine academic
decisions,'' Wynne v. Tufts Univ. Sch. of Med. (Wynne I), 932 F.2d 19,
25 (1st Cir. 1991), such as those involving a request to waive a
particular academic program requirement. But they have emphasized that
such deference is not the same as the sort of ``broad judicial
deference'' that courts use when applying the ``rational basis test.''
Id. And courts have only accorded deference to these concerns upon a
showing that an academic institution has ``conscientiously carried
out'' its obligation to ``seek suitable means of reasonably
accommodating'' the needs of a person with a disability. Id. at 25-26.
Courts have also indicated that new approaches or technological
advances may further weaken the deference a recipient is due in its
assessment that a reasonable modification would negatively impact
genuine academic decisions. Id. at 26 (citing Se. Comm. Coll. v. Davis,
442 U.S. 397, 412 (1979)). The Department anticipates similar standards
will apply when assessing whether a modification is ``reasonable''
under Sec. 106.40(b)(3)(ii).
In the event a particular modification would result in a
fundamental alteration, the Department acknowledges the concerns voiced
by commenters that a recipient could interpret the proposed regulations
as allowing a recipient to deny a student's request for modifications
completely without any further obligation to prevent sex discrimination
and to ensure equal access for a student who is pregnant or
experiencing pregnancy-related conditions. To address such concerns,
the Department has revised Sec. 106.40(b)(3)(ii)(A) to clarify that a
modification that a recipient can demonstrate would fundamentally alter
the nature of its education program or activity is not a reasonable
modification. Accordingly, demonstrating a particular modification
would be a fundamental alteration does not relieve a recipient of its
obligation under Sec. 106.40(b)(3)(ii)(A) to otherwise consult with
the student, determine whether there are reasonable modifications based
on the student's individualized needs, offer such reasonable
modifications and, if the student accepts, make such reasonable
modifications that sufficiently prevent sex discrimination and ensure
equal access.
The Department disagrees that Sec. 106.40(b)(3)(ii) will retreat
from previously issued guidance regarding voluntary leaves of absence
for pregnancy or related conditions. A recipient's obligation to
provide reasonable modifications to a student for pregnancy or related
conditions under Sec. 106.40(b)(3)(ii) is separate and distinct from
its longstanding obligation--preserved in final Sec.
106.40(b)(3)(iv)--to provide a voluntary leave of absence to a student
for pregnancy or related conditions. As explained below in the
discussion of Sec. 106.40(b)(3)(iv), that provision provides a basic
framework for determining leave due to a student's pregnancy or related
conditions. But if a student requests leave that exceeds this
framework, the recipient should consider the amount of leave the
student requests in excess of that required under Sec.
106.40(b)(3)(iv) as a request for a reasonable modification under Sec.
106.40(b)(3)(ii). See 87 FR 41521 (providing examples of circumstances
in which leave that exceeds the medically necessary time would be a
reasonable modification, such as when the medically necessary leave
would end in the middle of a college semester).
Changes: Proposed Sec. 106.40(b)(4) has been revised, consolidated
with proposed Sec. 106.40(b)(3)(ii), and redesignated as Sec.
106.40(b)(3)(ii)(A)-(C) in the final regulations. Final Sec.
106.40(b)(3)(ii)(A) now states that a recipient must make reasonable
modifications to its policies, practices, or procedures as necessary to
prevent sex discrimination and ensure equal access to the recipient's
education program or activity; that each modification must be based on
a student's individualized needs; that the recipient must consult with
the student when determining what modifications are required; and that
a modification that a recipient can demonstrate would fundamentally
alter the nature of its education program or activity is not a
reasonable modification. Section 106.40(b)(3)(ii)(B) now states that a
student has discretion whether to accept or decline an offered
modification; and that, if the student accepts the offered
modification, the recipient must implement the modification.
Inclusive List of Reasonable Modifications
Comments: The Department notes that proposed Sec.
106.40(b)(4)(iii) has been revised and redesignated as Sec.
106.40(b)(3)(ii)(C) in the final regulations, and the following comment
summaries and discussion refer to the provision as Sec.
106.40(b)(3)(ii)(C).
One commenter supported Sec. 106.40(b)(3)(ii)(C) because it would
provide critical guidance to recipients. Some commenters asked the
Department to add various specific examples of modifications or require
supplemental services, such as medical care. One commenter recommended
that the Department add ``or laboratory work'' after ``coursework.''
Some commenters asked the Department to revise, rather than add to, the
list of potential modifications. For example, one commenter suggested
that instead of ``homebound'' instruction, the regulations should refer
to online
[[Page 33777]]
educational programs or other home-based educational services.
Another commenter urged the Department to move ``intermittent
absences to attend medical appointments'' from Sec.
106.40(b)(3)(ii)(C) to Sec. 106.40(b)(3)(iv), which relates to
voluntary leaves of absence because of pregnancy or related conditions,
and clarify that such intermittent absences or voluntary leaves of
absence may include pre- and postnatal appointments, as well as bed
rest and leave to recover from childbirth or related conditions such as
mastitis, or otherwise clarify that a recipient must provide reasonable
modifications to an absence policy after childbirth.
Discussion: The Department agrees that Sec. 106.40(b)(3)(ii)(C)
will provide critical guidance to recipients. The Department has
revised this provision to clarify that online education need not be
homebound and to be consistent with final Sec. 106.40(b)(3)(vi), which
references certain modifications and is explained in more detail in the
discussion of Sec. 106.40(b)(3)(vi), to clarify that breaks from class
may be provided to attend to lactation, eating, drinking, using the
restroom, or other needs associated with pregnancy or related
conditions.
The Department declines to make other revisions to Sec.
106.40(b)(3)(ii)(C) suggested by commenters, including the request to
move ``intermittent absences to attend medical appointments'' to Sec.
106.40(b)(3)(iv). As explained above, a recipient's obligation to
provide reasonable modifications to a student for pregnancy or related
conditions under Sec. 106.40(b)(3)(ii) is separate and distinct from
its longstanding obligation to provide a voluntary leave of absence to
a student for pregnancy or related conditions, which is codified at
Sec. 106.40(b)(3)(iv) in the final regulations. The Department further
emphasizes that the regulation's use of the introductory phrase ``[m]ay
include but are not limited to'' confirms that the list of possible
reasonable modifications is non-exhaustive and broadly inclusive.
Section 106.40(b)(3)(ii)(C) includes reasonable modifications that are
typical, unlikely to result in a fundamental alteration to the nature
of a recipient's education program or activity, and effective in
preventing sex discrimination and ensuring equal access for students
who are pregnant or experiencing pregnancy-related conditions. For
additional clarity, the Department has added the reasonable
modifications of breaks to eat, drink, or use the restroom, allowing a
student to sit or stand, and allowing a student to carry or keep water
nearby. As discussed above, whether a particular or requested
modification is reasonable is a fact-specific inquiry that must be
individualized to the student in the context of the recipient's
education program or activity. Nothing in these regulations prevents a
student from requesting or a recipient from affirmatively offering a
particular modification, including those suggested by commenters, such
as tutoring, supplemental instruction, academic counseling, homework
assistance, changes in course load, modification of a school or sport
uniform policy, or other modifications that would apply to an athletic
or extracurricular context.
As the Department indicated in the July 2022 NPRM, 87 FR 41524,
reasonable modifications for a student based on pregnancy or related
conditions include many possible options. A student's options for
reasonable modifications because of pregnancy or related conditions
will not be limited or defined by the fact that the recipient has never
had occasion to provide a particular modification to any other student
in the past. Further, as explained above, it is not incumbent on the
student to propose or suggest any particular reasonable modification in
order for the recipient to offer reasonable modifications with the
student's input. Additionally, because Sec. 106.40(b)(3)(ii)(A)
requires a recipient to consider the provision of a modification on a
basis individualized to each student's pregnancy or related condition
and needs, a recipient may consider a variety of factors when offering
reasonable modifications, such as whether the student has a preferred
modification, whether alternative modifications exist, and the
feasibility of a modification. However, the Department reiterates that
a recipient ultimately has discretion in what reasonable modifications
it offers if there is more than one reasonable modification that would
address the student's individualized needs, prevent sex discrimination,
and ensure equal access to the recipient's education program or
activity. Additionally, a recipient has the burden of demonstrating
that a particular modification would fundamentally alter the nature of
its education program.
Changes: Proposed Sec. 106.40(b)(4)(iii) has been revised and
redesignated as Sec. 106.40(b)(3)(ii)(C). The Department has revised
the redesignated non-exhaustive list of examples in Sec.
106.40(b)(3)(ii)(C) for consistency with final Sec. 106.40(b)(3)(vi);
to clarify that breaks from class may be provided to attend to
lactation or other health needs associated with pregnancy or related
conditions, including eating, drinking, or using the restroom; and to
delete ``other'' from the phrase ``online or other homebound
education'' to clarify that online education need not be homebound.
Title IX Coordinator's Role
Comments: Some commenters supported the proposed regulations--which
would have required that reasonable modifications because of pregnancy
or related conditions ``be effectively implemented, coordinated, and
documented by the Title IX Coordinator''--because they would have made
clear that the Title IX Coordinator has the authority and
responsibility to ensure that reasonable modifications are actually
provided to students.
In contrast, other commenters expressed concern that the proposed
regulations would have (1) hindered the effectiveness of other
departments within a recipient that typically address student requests
for disability-related accommodations; (2) been inconsistent with
proposed Sec. 106.40(b)(5) (redesignated in the final regulations as
Sec. 106.40(b)(4)), which requires comparable treatment to temporary
disabilities or conditions; (3) overburdened the Title IX Coordinator;
and (4) failed to take into account the expertise and resources most
recipients allocate to offices that provide accommodations for students
with disabilities. Some commenters noted that other departments within
a recipient may also play a role in providing accommodations or be
better positioned than the Title IX Coordinator to do so, including
academic affairs, student life, enrollment, and campus health services.
Some commenters urged the Department to clarify instances in which
the Title IX Coordinator should consult with or defer to disabilities
services staff, a student's Section 504 team, or a student's IEP team
when the Title IX Coordinator is facilitating a reasonable modification
because of pregnancy or related conditions, in order to increase
coordinated compliance under Title IX and Federal disability laws.
Some commenters recommended a variety of revisions to the proposed
regulations to decrease the role of the Title IX Coordinator in
implementing reasonable modifications. Other commenters urged the
Department to revise the proposed regulations to make clear that a
recipient, not the Title IX Coordinator, is responsible for requests
related to reasonable modifications or leaves of absence.
Discussion: The Department agrees with commenters that the
recipient, not
[[Page 33778]]
the Title IX Coordinator, is ultimately responsible for implementing
requests for reasonable modifications and other specific actions the
recipient must take under final Sec. 106.40(b)(3)(ii)-(vi).
Accordingly, the Department has revised Sec. 106.40(b)(3) to clarify
that it is the recipient's responsibility to take, and the Title IX
Coordinator's responsibility to coordinate, these actions, including
the provision of reasonable modifications because of pregnancy or
related conditions. Additionally, the final regulations expressly
permit a recipient or a Title IX Coordinator to delegate specific
duties as appropriate, provided the Title IX Coordinator retains
ultimate oversight to ensure the recipient's consistent compliance
under Title IX and the regulations. See discussion of Sec. 106.8(a).
Consistent with these revisions, and as noted in a similar discussion
above regarding Sec. 106.40(b)(3) generally, a recipient may delegate
the provision of reasonable modifications because of pregnancy or
related conditions to other personnel beyond the Title IX Coordinator.
Permission to delegate responsibilities to designees enables a
recipient to assign duties to personnel who are best positioned to
perform them, to address actual or perceived conflicts of interest, and
to align with the recipient's administrative structure. For example, as
long as the Title IX Coordinator retains oversight and a recipient's
process for providing reasonable modifications because of pregnancy or
related conditions is consistent with Sec. 106.40(b)(3)(ii), a
recipient may delegate responsibilities under that process to any staff
or departments as appropriate, including those who support students
with disabilities.\83\ The Department declines to further limit the
Title IX Coordinator's role in coordinating reasonable modifications
because of pregnancy or related conditions, however. The Title IX
Coordinator has unique and specific knowledge of a recipient's
obligations to prevent sex discrimination and ensure equal access that
must inform the implementation of Sec. 106.40(b)(3)(ii), even if
certain portions of the process are delegated to other employees or
departments acting with the Title IX Coordinator's oversight.
Additionally, the Title IX Coordinator can serve as a critical point of
contact for students or provide other support to coordinate multiple
departments or employees tasked with implementing reasonable
modifications, such as communicating approved modifications to the
student and any relevant staff members or ensuring that all other staff
members involved in carrying out the modifications are performing their
roles.
---------------------------------------------------------------------------
\83\ Such a delegation would not affect the legal determination
whether a student has a disability.
---------------------------------------------------------------------------
Revising the regulatory text to state that the Title IX
Coordinator's role is to coordinate, rather than exclusively to
implement, emphasizes the opportunity for the Title IX Coordinator to
delegate and decreases the likelihood that reasonable modification
requests overburden the Title IX Coordinator with duties better suited
for other personnel. Additionally, the Department has also removed the
proposed requirement for the Title IX Coordinator to ``document''
reasonable modifications to decrease administrative burdens on the
Title IX Coordinator and address privacy concerns related to such
documentation. The Department emphasizes that while a recipient must
comply with the final regulations regarding reasonable modifications,
the reasonable modification provision does not require a recipient to
maintain documentation of compliance with Sec. 106.40(b)(3)(ii). While
a recipient may choose to voluntarily maintain such records, those
records would be subject to Sec. 106.44(j) of the final regulations,
which prohibits the disclosure of personally identifiable information
obtained in the course of complying with this part with some
exceptions. The disclosure restrictions are explained more fully in the
discussion of Sec. 106.44(j).
The Department declines to require a recipient to consult with
disabilities support staff in every case related to the provision of
reasonable modifications because of pregnancy or related conditions.
While doing so may be prudent in some cases, in other cases it will be
unnecessary, inappropriate, or inefficient, and whether it is required
will be a fact-specific determination. For example, if a high school
student with a disability that affects mobility requests a dress code
modification for gym class due to pregnancy, this may not impact the
student's placement such that coordination with the student's IEP or
Section 504 team is required. However, if a student with ADHD requests
a six-week, medically necessary leave from high school to recover from
childbirth, the student's IEP or Section 504 team would likely have to
convene to discuss how to provide the student appropriate education
during this period, beyond or in combination with any reasonable
modifications the student is entitled to under Title IX. The Department
also declines to mandate that a Title IX Coordinator coordinate with
disabilities support staff or a student's IEP or Section 504 team
because it will better serve a student's privacy interests in
circumstances in which a student does not wish to disclose information
related to their pregnancy or pregnancy-related condition to their IEP
or Section 504 team. For example, a high school student with a vision
disability who requests breaks from class to address lactation needs
may not wish to share the reason for the breaks beyond the Title IX
Coordinator if the disability has no connection to the pregnancy.
Nothing in the final regulations prevents a recipient from adopting
additional mechanisms to coordinate compliance with relevant laws to
maximize protection from discrimination and minimize the potential for
redundancy or unnecessary burden on a recipient's students or
employees.
Changes: Proposed Sec. 106.40(b)(4) has been revised, consolidated
with proposed Sec. 106.40(b)(3)(ii), and redesignated as Sec.
106.40(b)(3)(ii)(A)-(C) in the final regulations, and the requirement
for the Title IX Coordinator to implement and document reasonable
modifications has been removed. Final Sec. 106.40(b)(3) now states
that the Title IX Coordinator must coordinate actions under paragraphs
(b)(3)(i) through (vi). Final Sec. 106.40(b)(3)(ii) now specifically
states that a recipient must make reasonable modifications to the
recipient's policies, practices, or procedures as necessary to prevent
sex discrimination and ensure equal access to the recipient's education
program or activity.
Termination of Pregnancy
Comments: The Department notes that proposed Sec.
106.40(b)(3)(ii), (iii), and (4) have been revised and redesignated as
Sec. 106.40(b)(3)(ii) and (iv) in the final regulations, and the
following comment summaries and discussion refer to these provisions as
Sec. 106.40(b)(3)(ii) and (iv).
Some commenters supported reasonable modifications and voluntary
leaves of absence because of pregnancy or related conditions as helpful
to students in understanding their options for educational access.
Several commenters asked the Department to clarify a recipient's
obligation to provide reasonable modifications or a leave of absence
for complications arising from termination of pregnancy or for out-of-
State travel for health care related to pregnancy or related
conditions. Other commenters asked that the reasonable modifications
provision state that recipients would not be required to provide, pay
for, or refer a student for an abortion or any abortion-related
services. Some
[[Page 33779]]
commenters asked the Department to clarify or issue guidance on a
recipient's obligations regarding disclosure of information related to
modifications sought or provided to a student to access an abortion.
Discussion: The Department acknowledges the perspective of
commenters who described the importance of the proposed provisions
requiring reasonable modifications and voluntary leaves of absence and
appreciates the opportunity to clarify a recipient's distinct
obligations under these two provisions in the final regulations. Under
Sec. 106.40(b)(3)(ii), a recipient must provide a student who is
pregnant or experiencing pregnancy-related conditions with reasonable
modifications as necessary to prevent sex discrimination and ensure
equal access to an education program or activity. Under Sec.
106.40(b)(3)(iv), a recipient must allow a student who is pregnant or
experiencing pregnancy-related conditions to voluntarily take a leave
of absence from the recipient's education program or activity to cover,
at a minimum, the time deemed medically necessary by the student's
licensed healthcare provider. As explained more fully above in the
discussion of the definition of ``pregnancy or related conditions'' in
Sec. 106.2, ``pregnancy or related conditions'' includes pregnancy,
childbirth, termination of pregnancy, or lactation, as well as related
medical conditions and periods of recovery.
As detailed above in the discussion of the definition of
``pregnancy or related conditions'' in Sec. 106.2, 20 U.S.C. 1688
states that Title IX's general nondiscrimination mandate cannot
``require or prohibit any person, or public or private entity, to
provide or pay for any benefit or service, including the use of
facilities, related to an abortion.'' The Department does not view a
recipient's reasonable modification of its policies, practices, and
procedures when necessary due to a student's termination of pregnancy
under Sec. 106.40(b)(3)(ii) or allowing a voluntary leave of absence
under Sec. 106.40(b)(3)(iv), as running afoul of section 1688. Such
modifications or leave are not ``benefits or services'' under 20 U.S.C.
1688. See 134 Cong. Rec. H565-02 (daily ed. Mar. 2, 1988) (describing
the abortion neutrality provision as limited to ``the performance of or
payment for abortion''). The modifications required under Sec.
106.40(b)(3)(ii) do not require any recipient to fund or perform
abortions. Rather, modifications required under Sec. 106.40(b)(3)(ii)
are specifically related to non-discriminatory access to a recipient's
education program or activity and could include, for example, access to
online or homebound instruction during recovery from termination of
pregnancy; or allowing extra time to complete an exam or coursework for
a student who needs to travel out of State to receive specialized care
for a high-risk pregnancy.
Further, section 1688 contains a self-limitation; the second
sentence indicates that the first must not be ``construed to permit a
penalty to be imposed on any person or individual because such person
or individual is seeking or has received any benefit or service related
to a legal abortion.'' Thus, it is clear that section 1688 does not
justify such penalties, which constitute prohibited sex discrimination
under section 1681. For purposes of complying with Title IX, schools
may presume that individuals seeking reasonable modifications,
voluntary leaves of absence, or comparable treatment to other temporary
medical conditions related to an abortion intend to obtain a legal
abortion. Students can legally terminate a pregnancy either in their
State or by traveling to another State where the abortion is lawful. In
addition, questions about when an abortion is lawful under State law
often involve complex medical and factual considerations that fall well
outside the expertise of educational institutions, making recipients
ill equipped to assess the legality of an abortion. In response to
requests for reasonable modifications, leaves of absence, or comparable
treatment, recipients have no education-related need to access
information about how or where a student will obtain medical treatment
or for other personal health-related information related to termination
of a pregnancy.
The Department notes that recipients routinely provide reasonable
modifications or accommodations for a wide array of temporary medical
conditions (including illness, injury, or medical procedures) without
requesting sensitive and specific healthcare information from students
about the origin or timeline of such a condition, or about how, where,
by whom, or in what manner the condition will be treated. Nothing in
these regulations requires a different approach in the abortion
context. Were a recipient to treat requests for reasonable
modifications for abortion care differently than they do requests for
reasonable modifications for other temporary medical conditions with
respect to the information students must provide to accompany such
requests, such treatment could contravene the broad nondiscrimination
mandate in section 1681, as discussed above. Asking a student for such
personal information in the course of providing reasonable
modifications or comparable treatment may constitute sex
discrimination--particularly if the inquiry is informed by sex
stereotypes (e.g., questions about whether the student is married or
the circumstances surrounding the pregnancy) or could constitute
different treatment (e.g., if a recipient would not ask a student how
they became disabled or specific questions about treatment of their
disability, but asks a student how they became pregnant or specific
questions about treatment of their pregnancy, including potential
termination). And asking unnecessary and invasive questions could
compromise student privacy in a manner that could chill students from
seeking reasonable modifications or comparable treatment that they are
entitled to under these regulations, which may also contravene Title
IX.
In such a scenario, section 1688 would not justify the
discrimination because requiring a recipient to apply the same
information gathering policies across temporary medical conditions is
not requiring a ``benefit or service'' related to abortion. More
specific questions and issues related to a recipient's compliance with
both Title IX and State law, including when preemption issues may
arise, must be considered on a case-by-case basis given the fact-
specific nature of the inquiry. Likewise, section 1688 does not
preclude the requirement under Sec. 106.40(b)(3)(iv) that a recipient
must allow a student to take a voluntary leave of absence for as long
as medically necessary for pregnancy or related conditions, including
termination of pregnancy. Such a leave of absence is not a benefit or
service relating to abortion, particularly when the recipient makes
leave generally available to ensure that students with a variety of
pregnancy-related (and non-pregnancy related) conditions can continue
to access the recipient's education program or activity.
The Department will offer technical assistance, as appropriate, the
scope of which will be determined in the future, to promote compliance
with these final regulations.
Changes: None.
Interaction With Other Federal Laws
Comments: The Department notes that proposed Sec. 106.40(b)(3)(ii)
and (4) have been revised and redesignated as Sec. 106.40(b)(3)(ii) in
the final regulations, and the following comment summaries
[[Page 33780]]
and discussion refer to these provisions as Sec. 106.40(b)(3)(ii).
One commenter supported Sec. 106.40(b)(3)(ii) because it would
clarify that a recipient has other obligations regarding pregnancy or
related conditions beyond student and employee health plans and
benefits. The commenter asserted that recipients are familiar with the
Department's proposed process for pregnancy-related reasonable
modifications because they have similar obligations under Title II of
the ADA, and that familiarity will facilitate compliance with the
proposed regulations.
Another commenter asked the Department to explicitly state that a
pregnancy-related condition need not qualify as a disability under the
ADA to qualify for a reasonable modification under Title IX.
In contrast, some commenters asserted that the provision of
reasonable modifications because of pregnancy or related conditions
would exceed the Department's authority under Title IX because the
modifications would address disability discrimination. Specifically,
the commenters argued that the proposed reasonable modification
requirements would go beyond prohibiting different treatment to
requiring a recipient to affirmatively provide modifications based on
pregnancy or related conditions. The commenters asserted that this
requirement would give preferential treatment to a student based on sex
in violation of Title IX.
Some commenters also argued that because pregnancy or related
conditions generally are not disabilities under the ADA or Section 504,
the proposed regulations would impermissibly use Title IX to expand a
student's rights and a recipient's obligations under disability law.
These commenters further asserted that the requirement to affirmatively
notify a student of available modifications and the procedures to
determine whether to provide a modification would differ from those
outlined in the ADA and Section 504.
Some commenters argued that because Title IX is modeled after Title
VII and proposed Sec. 106.40(b)(3)(ii) would provide more protections
to a student who is pregnant or experiencing pregnancy-related
conditions than a similarly situated employee would be provided under
Title VII, the proposed regulations would exceed and conflict with
Title VII.
Finally, one commenter asked for clarification about how proposed
Sec. 106.40 would interact with other parts of Title IX, the PDA,
Section 504, and the ADA. The commenter also asked for clarification
about the differences between a recipient's obligations toward pregnant
students and employees, how Sec. 106.40 would apply to a student-
employee, and whether there is a distinction based on whether the
individual is primarily a student (e.g., undergraduate students with
part-time campus-based jobs) or primarily an employee (e.g., employees
who may be enrolled in one or two classes at a time) and the context
for the sex discrimination reported. This commenter observed that Sec.
106.46(b) addresses this issue regarding sex-based harassment grievance
procedures.
Discussion: The Department agrees that Sec. 106.40(b)(3)(ii) will
clarify that a recipient has obligations that extend beyond student
health plans and benefits for students who are pregnant or experiencing
pregnancy-related conditions. Additionally, the Department agrees that
similarities between Sec. 106.40(b)(3)(ii) and Title II of the ADA
will facilitate compliance for recipients.
The Department disagrees that Sec. 106.40(b)(3)(ii) exceeds the
Department's authority under Title IX or provides preferential
treatment to a student based on sex in violation of Title IX. Since
1975, consistent with the Department's broad statutory authority to
issue regulations prohibiting sex discrimination, the Title IX
regulations have included provisions that require a recipient to take
proactive steps to ensure equal treatment and access for students who
are pregnant or experiencing pregnancy-related conditions that differ
from what accommodations are provided to other students, including
students with disabilities. See 40 FR 24128 (codified at 45 CFR
86.40(b)(1), (5) (1975)); 34 CFR 106.40(b)(1), (5) (current); 20 U.S.C.
1682. The provision of reasonable modifications based on pregnancy or
related conditions is not preferential treatment based on sex, but
rather measures that are necessary to prevent sex discrimination and
ensure equal access to a recipient's education program or activity for
students who are pregnant or experiencing pregnancy-related conditions.
A recipient's denial of reasonable modifications for a student based on
pregnancy or related conditions uniquely deprives that student of an
educational opportunity of which they would not otherwise be deprived,
but for their sex.
Moreover, the Department disagrees with commenters' assertion that
Sec. 106.40(b)(3)(ii) impermissibly uses Title IX to expand a
student's rights or a recipient's obligations under disability law. As
some commenters and the July 2022 NPRM noted--and as the Department
clarifies here--pregnancy itself is not a disability. 87 FR 41523.
Therefore, a recipient's obligation to provide reasonable modifications
because of pregnancy or related conditions under Sec. 106.40(b)(3)(ii)
is distinct from its obligation to provide reasonable modifications
because of a disability under Section 504 or the ADA. Further, whether
a pregnancy-related condition is categorized as a disability under
Section 504 or the ADA has no effect on a recipient's separate
obligation to provide reasonable modifications under Sec.
106.40(b)(3)(ii). 87 FR 41525. The Department clarifies that nothing in
Sec. 106.40(b)(3)(ii) obviates a recipient's separate obligation to
comply with other applicable civil rights law, including the ADA,
Section 504, Title VII as amended by the PDA, or the Pregnant Workers
Fairness Act (PWFA), codified at 42 U.S.C. 2000gg et seq., which has
become law since the issuance of the July 2022 NPRM.
The Department disagrees that the obligation to provide reasonable
modifications because of pregnancy or related conditions conflicts with
the obligation to provide reasonable modifications for a disability. As
indicated in the July 2022 NPRM, the framework for reasonable
modifications because of pregnancy or related conditions is similar to
the framework of Title II of the ADA, and the approach of Sec.
106.40(b)(3)(ii) will invite collaboration between the student and the
recipient to determine what reasonable modifications are required
considering the student's individualized needs, a process that is
similar to the one used to identify the reasonable modifications or
reasonable accommodations that must be implemented under the ADA. See
87 FR 41523. The Department expects that this framework not only will
be most effective in ensuring equal access and preventing sex
discrimination as required by Title IX, but also will be familiar to
most recipients and thus will be relatively straightforward to adopt
and implement for students who are pregnant or experiencing pregnancy-
related conditions. As such, the Department declines to remove the
requirement to provide reasonable modifications because of pregnancy or
related conditions.
The Department disagrees with the assertion that providing unique
protections to students under Title IX necessarily conflicts with Title
VII. As explained in the July 2022 NPRM, the treatment of pregnancy-
related discrimination under the PDA, the ACA, and other statutes
enacted since 1975
[[Page 33781]]
informs, but does not dictate, the Department's understanding of
discrimination on the basis of sex under Title IX. 87 FR 41394. Title
IX regulations have long included protections and requirements that are
unique to the context of education programs and activities. See
generally 40 FR 24128 (1975). For example, the provision of a voluntary
leave of absence to a student or employee for pregnancy and certain
related conditions (34 CFR 106.40(b)(5) (current) and 34 CFR 106.57(d)
(current)) are longstanding requirements in Title IX regulations that
have no corollary in Title VII. Further, in response to a commenter's
request to clarify how Sec. 106.40(b)(3)(ii) and this part would
interact with the PDA, Section 504, and the ADA, explaining all the
ways that Title IX may interact with these laws is too extensive to
summarize and beyond the scope of this rulemaking,
Additionally, under Sec. 106.40(b)(3)(ii), a recipient is
obligated to provide reasonable modifications to a student, defined in
Sec. 106.2 as ``a person who has gained admission,'' who is pregnant
or experiencing pregnancy-related conditions. The recipient has this
obligation regardless of whether the student is also an employee of the
recipient. The primary purpose of reasonable modifications under Title
IX is to ensure that pregnancy or related conditions do not deny
educational opportunities or disrupt a student's academic progress,
regardless of whether the student is enrolled full-time, part-time, or
in only one or two classes. Consequently, if an employee is enrolled in
the recipient's education program or activity, the recipient must offer
and make reasonable modifications sufficient to allow the employee to
continue their educational progress as a student consistent with Sec.
106.40(b)(3)(ii). Additionally, the Department clarifies that a
recipient must comply with grievance procedures outlined in Sec.
106.45, and if applicable Sec. 106.46, for any complaint that alleges
a recipient failed to take specific action under Sec. 106.40(b)(3),
regardless of whether the student is also an employee. Final Sec.
106.46(b) further discusses the application of grievance procedures to
a sex-based harassment complaint, which may include pregnancy
harassment, that involves a postsecondary student-employee. See
discussion of Sec. 106.46(b).
Changes: None.
Request To Extend Reasonable Modifications to Applicants
Comments: The Department notes that proposed Sec. 106.40(b)(3)(ii)
and (4) have been revised and redesignated as Sec. 106.40(b)(3)(ii) in
the final regulations, and the following comment summaries and
discussion refer to these provisions as Sec. 106.40(b)(3)(ii).
Some commenters recommended that the Department revise proposed
Sec. 106.40(b)(3)(ii) to state that an applicant for admission has the
right to a reasonable modification to ensure that pregnancy or related
conditions do not act as a barrier to entering a recipient's education
program or activity, as well as to align with other civil rights laws.
Discussion: The Department declines to require a recipient to apply
Sec. 106.40(b)(3)(ii) to applicants for reasons discussed in more
detail in the discussion of Sec. 106.21(c)(1).
Changes: None.
Terminology
Comments: The Department notes that proposed Sec. 106.40(b)(3)(ii)
and (4) have been revised and redesignated as Sec. 106.40(b)(3)(ii) in
the final regulations, and the following comment summaries and
discussion refer to these provisions as Sec. 106.40(b)(3)(ii).
Some commenters recommended that the Department replace the term
``reasonable modifications'' with the term ``reasonable
accommodations'' because, they stated, it would be less confusing and
more appropriate for the context. Some commenters asserted that
``modification'' implies a change to what a student is expected to do
while ``accommodation'' implies a support or service to help a student
do an expected task. The commenters asserted that ``accommodation''
describes a broader range of support that a recipient may provide to a
student who is pregnant or experiencing pregnancy-related conditions.
In contrast, another commenter stated that a ``modification'' to a
policy, practice, or procedure seems more permanent and implies that it
would be changed for all students.
Discussion: While the Department acknowledges commenters' concerns
about the term ``reasonable modifications'' and its meaning, the term
is appropriate and straightforward. Final Sec. 106.40(b)(3)(ii)
clearly sets out the purpose of reasonable modifications and the very
broad range of individual modifications that a recipient may provide
based on the circumstances. Under the final regulations, a recipient
can implement a reasonable modification for just one student, such as a
modification that is provided to just the student who is pregnant or
experiencing pregnancy-related conditions, or implement a broader
policy or procedural change that affects many students, including the
student who is pregnant or experiencing pregnancy-related conditions;
for example, implementing a student's reasonable modification request
for an extension on an assignment by extending the deadline for all
students in the class. Additionally, the regulatory framework from
which Sec. 106.40(b)(3)(ii) primarily draws--but is not identical to--
and with which many recipients must comply under Title II of the ADA
uses the term ``reasonable modifications.'' 28 CFR 35.130(b)(7).
Therefore, using the term ``reasonable modifications'' is less
confusing and more appropriate than any other term.
Changes: None.
Cost-Benefit Analysis
Comments: The Department notes that proposed Sec. 106.40(b)(3)(ii)
and (4) have been redesignated as Sec. 106.40(b)(3)(ii) in the final
regulations, and the following comment summaries and discussion refer
to these provisions as Sec. 106.40(b)(3)(ii).
One commenter objected to proposed Sec. 106.40(b)(3)(ii) because,
the commenter asserted, the Department did not consider what reasonable
modifications would be required, aside from lactation spaces and leave;
the financial costs of such modifications; how providing a modification
could negatively impact or be unfair to another student, such as
delayed or longer times for test taking; or any reasonable
modifications required for parents or fathers.
Discussion: The commenter overstates the increased costs or burdens
for implementing reasonable modifications unrelated to lactation and
leave. As noted in the July 2022 NPRM, recipients have existing
obligations that are similar to those under Sec. 106.40(b)(3)(ii),
which require a recipient to make modest modifications to a policy,
practice, or procedure, such as providing a student a larger desk,
allowing more frequent bathroom breaks, or permitting temporary access
to elevators. 87 FR 41560.
The Department declines to extend reasonable modifications to
individuals other than students who are pregnant or experiencing
pregnancy-related conditions, because such students have unique sex-
based needs and requiring reasonable modifications for that population
is necessary for ensuring equal access to a recipient's education
program or activity and preventing sex discrimination. The Department
notes
[[Page 33782]]
that, even though recipients are not required to extend reasonable
modifications beyond the student who is pregnant or experiencing a
pregnancy-related condition, any rules related to a student's parental,
family, or marital status cannot treat students differently based on
sex. A policy that allowed for leave for only students of one sex to,
for example, provide bonding time ``for the natural caregiver''--rather
than leave to recover from childbirth--would be based on impermissible
sex stereotypes in violation of Title IX. Nothing in Title IX prevents
a recipient from offering reasonable modifications or leave to parents
or caregivers, provided the recipient does not treat students
differently on the basis of sex.
Further, the Department disagrees with the implication that the
costs or burdens of Sec. 106.40(b)(3)(ii) would not be justified by
the benefits of clarifying a recipient's obligation to provide, and
ensuring that students are able to access, reasonable modifications and
voluntary leaves of absence for pregnancy or related conditions. The
Department views the final regulations as an effective means of
preventing sex discrimination and ensuring equal access to a
recipient's education program or activity for students who are pregnant
or experiencing pregnancy-related conditions. Although there are
limited data quantifying the economic impacts of sex discrimination,
the Department's review of public comments shows that such barriers can
prevent students from obtaining a high school diploma, pursuing higher
education, or obtaining a postsecondary degree, which limits their
economic opportunities and may have long-term or generational impacts.
A more detailed discussion and analysis of the costs and benefits of
provisions related to reasonable modifications in these final
regulations is included in the Regulatory Impact Analysis discussion of
pregnancy or related conditions.
Changes: None.
7. Sections 106.40(b)(1) and 106.40(b)(3)(iii) Pregnancy or Related
Conditions--Voluntary Access to Separate and Comparable Portion of
Program or Activity
Comments: The Department notes that proposed Sec.
106.40(b)(3)(i)(C) has been redesignated as Sec. 106.40(b)(3)(iii) in
the final regulations, and the following comment summaries and
discussion generally refer to this provision as Sec.
106.40(b)(3)(iii).
Some commenters appreciated that the provisions in the proposed
regulations at Sec. 106.40(b)(1) and (3)(iii) would preserve the
existing and longstanding requirement that participation in any
separate program based on pregnancy or related conditions must be
voluntary and that such programs must be comparable to those offered to
students who are not pregnant and do not have related conditions.
Some commenters cited examples of pregnant students, particularly
those in high school, being coerced or pressured into inferior
alternative education programs. A group of commenters provided examples
from their own experiences and reported that, when educators or
counselors learn of a student's pregnancy or parental status, they
often pressure the student to attend an alternate school of lower
quality that offers fewer options for courses and extracurricular
activities or force the student to withdraw from the recipient's
education program or activity altogether instead of offering support to
help them continue their education.
Some commenters urged the Department to change the proposed
regulatory language to explicitly prohibit a recipient from forcing a
student who is pregnant or is experiencing a pregnancy-related
condition to participate in a separate portion of the recipient's
education program or activity. Some commenters requested that the
Department alter the standard in proposed Sec. 106.40(b)(1) and
require separate programs to be ``substantially equal'' instead of
``comparable.'' Some commenters suggested that the Department specify
that such programs must be substantially equal ``in purpose, scope, and
quality'' to those offered to students who are not pregnant or
parenting. One commenter suggested that the Department incorporate into
its standard the factors outlined in the current regulations regarding
single-sex classes at Sec. 106.34(b)(3) to evaluate whether a program
offered to pregnant students is substantially equal.
Other commenters requested that the Department change proposed
Sec. 106.40(b)(1) to apply to parenting students.
Discussion: The Department disagrees that the regulations need to
be revised to state that a recipient must not force a student who is
pregnant or experiencing pregnancy-related conditions to participate in
a separate portion of its education program or activity or to further
define the terms in the proposed regulations. Under final Sec.
106.40(b)(1) and (3)(iii), a recipient does not engage in prohibited
discrimination when it allows a student who is pregnant or experiencing
pregnancy-related conditions to participate voluntarily in a separate
portion of the recipient's education program or activity. Indeed, since
the Department's Title IX regulations were originally promulgated in
1975, they have required that such admittance be ``completely voluntary
on the part of the student[.]'' 40 FR 24128 (codified at 45 CFR
86.40(b)(3) (1975)); see also 34 CFR 106.40(b)(3) (current). The
Department clarifies here that the use of the word ``voluntarily''
means that recipients must not coerce or pressure any student to
participate in such separate programs. This is consistent with OCR's
public education documents regarding Title IX and pregnant and
parenting students, issued first in 1991 and again in 2013, which
explained the Department's policy that the regulations prohibited a
recipient from requiring or pressuring a student to participate in a
separate program for pregnant students. See 2013 Pregnancy Pamphlet at
7; 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 (1991) (1991 Pregnancy Pamphlet), https://files.eric.ed.gov/fulltext/ED345152.pdf. Because a student's participation in a separate
portion of its education program or activity under final Sec.
106.40(b)(1) and (3)(iii) on the basis of pregnancy or related
conditions is voluntary, a recipient may neither coerce nor pressure
such a student to participate. For these reasons, the alternate
definitions or constructions offered by commenters are unnecessary.
Additionally, the Department declines the commenters' suggestion to
require any voluntary and separate portion of a recipient's education
program or activity to be ``substantially equal'' instead of
``comparable.'' The requirement that a separate program for pregnant
students be ``comparable'' has been in the regulations as part of
current Sec. 106.40(b)(3) since they were originally promulgated in
1975, and OCR has interpreted the term, as it is generally understood,
to mean of equivalent quality or similar such that it is capable of
comparison. 40 FR 24128 (codified at 45 CFR 86.40(b)(3) (1975)); see
also 34 CFR 106.40(b)(3) (current). As OCR explained in 1991, the
comparability requirement means that voluntary alternative programs
must provide ``educational quality and academic offerings similar to
those in the regular program.'' 1991 Pregnancy Pamphlet, at 7. And in
2013 the Department further explained that, for example, an alternative
program providing only a vocational track with no opportunity for
[[Page 33783]]
advanced academic or college-preparatory classes would not meet the
comparability standard. See 2013 Pregnancy Pamphlet, at 7. The
Department clarifies that the term ``comparable'' refers to all aspects
of a student's access to educational opportunity.
There may be legitimate, nondiscriminatory reasons that a temporary
program for students who are pregnant or are experiencing related
conditions could not be substantially the same as the permanent
academic program offered to all students. For example, while an online
portion of a recipient's program in some cases may not be considered
substantially equal in quality to in-person instruction (because, for
example, it lacks certain extracurricular activities or opportunities
for social interaction that a traditional program would have), such an
option might offer a pregnant student who is confined to bed rest a
comparable alternative that would keep them engaged in school for a
specific timeframe and be preferable to remaining completely out of
school. Likewise, an alternative program geared toward pregnant
students may exceed the offerings of a recipient's general curriculum,
for example by including parenting classes to support the needs of this
specific population. A determination about such programs would depend
on the facts and circumstances, but the Department generally considers
these types of supplemental courses or services to be allowed under the
Sec. 106.40(b)(1) and (3)(iii) ``comparable'' standard. Shifting to a
``substantially equal'' standard could suggest that they are
impermissible.
The Department declines the commenter's suggestion to incorporate
into final Sec. 106.40(b)(1) and (3)(iii) the factors for single-sex
classes under current Sec. 106.34(b)(3). Doing so could inaccurately
imply that any ``separate portion'' of a recipient's education program
or activity subject to Sec. 106.40(b)(1) and (3)(iii) is always
single-sex. However, the Department agrees that the Sec. 106.34(b)(3)
factors are nevertheless helpful and relevant to explain how the
Department interprets comparability under final Sec. 106.40(b)(1) and
(3)(iii). Accordingly, the Department clarifies that in determining
whether such ``separate portion'' of a recipient's education program or
activity under final Sec. 106.40(b)(1) and (3)(iii) is ``comparable''
to that offered to students who are not pregnant and do not have
related conditions, the Department considers, as appropriate, factors
including the policies and criteria of admission; the educational
benefits provided, including the quality, range, and content of
curriculum and other services and the quality and availability of
books, instructional materials, and technology; the qualifications of
the instructors; and the quality, accessibility, and availability of
facilities and resources provided to the class.
For clarity, rather than stating that a recipient may permit a
student based on pregnancy or related conditions to participate
voluntarily in a separate and comparable portion of its education
program or activity as outlined above and set out in proposed Sec.
106.40(b)(1), the Department has revised the second sentence of final
Sec. 106.40(b)(1) to state that such a voluntary and comparable
placement is not prohibited discrimination. This revision will increase
coherence within Sec. 106.40(b)(1) and emphasize that a recipient may
allow the type of enrollment described without running afoul of the
regulation's general prohibition on discrimination based on pregnancy
or related conditions in the same provision.
The Department acknowledges the suggestion that the Department
revise Sec. 106.40(b)(1) to apply to parenting students. The
Department notes that under the final regulations, treating parenting
students differently based on sex is prohibited, see Sec. 106.40(a),
as is discriminating against parenting students and employees based on
sex stereotypes about the proper roles of mothers and fathers, see
Sec. 106.10. The Department will consider the need for the suggested
revision, and the cost and administrative burden it may place on
recipients, in future rulemakings.
Changes: For stylistic consistency with other references to
``voluntary'' in the final regulations, the Department has replaced
``participate voluntarily'' in Sec. 106.40(b)(1) with ``voluntarily
participate.'' The Department has further replaced the words ``may
permit'' with the words ``does not engage in prohibited discrimination
when it allows[.]''
8. Section 106.40(b)(3)(iv) Pregnancy or Related Conditions--Voluntary
Leaves of Absence
General
Comments: The Department notes that proposed Sec.
106.40(b)(3)(ii), (iii), and (4) have been revised and redesignated as
Sec. 106.40(b)(3)(ii) and (iv) in the final regulations, and the
following comment summaries and discussion refer to these provisions as
Sec. 106.40(b)(3)(ii) and (iv).
Some commenters supported proposed Sec. 106.40(b)(3)(iv) because
it would ensure a recipient's absence policy does not affect a
student's access to its education program or activity due to pregnancy
or related conditions. One group of commenters shared personal
experiences of being penalized for pregnancy-related absences,
including a student who was given a failing grade because she was in
the hospital recovering from a miscarriage during final exams and a
postsecondary student who was told to return to school to take exams,
days after giving birth, against her doctor's recommendation. Other
commenters shared experiences of feeling pressured to return to an
education program or activity before they were physically capable or
against medical advice, such as inducing labor to avoid missing a class
or seeking a release from a doctor to return sooner than what is
advised for a surgery as complicated as a cesarean section.
Some commenters supported proposed Sec. 106.40(b)(3)(iv) because
it would ensure leave is based on medical necessity and require a
student to be restored to the same status upon return. One commenter
said that this provision is needed based on a survey, which found that
pregnant students are typically out of school from four to six weeks
after childbirth but receive no academic instruction or connection to
teachers or school; that students who return to school often struggle
to make up for lost instruction time; and that students are unaware of
the supports available to them in school to maintain access to
educational opportunities.
Some commenters urged the Department to modify language related to
reinstatement after a leave of absence, such as defining ``academic
status'' in Sec. 106.40(b)(3)(iv) and acknowledging that reinstatement
in a particular semester may depend on the program in which the student
is enrolled.
Another commenter stated that the Department should be as specific
as possible regarding student-athletes, to prevent a recipient from
penalizing a student-athlete for pregnancy or related conditions during
a leave of absence.
Some commenters asked the Department to clarify the timeline for
when a student is to be reinstated to the academic status that they
held prior to taking leave consistent with Sec. 106.40(b)(3)(iv).
Another commenter asked the Department to clarify the term ``leave of
absence'' in Sec. 106.40(b)(3)(iv) as it applied to an elementary
school or secondary school, because attendance is compulsory in these
grades.
Discussion: The Department agrees that Sec. 106.40(b)(3)(iv) will
afford equal
[[Page 33784]]
opportunity and clarify a recipient's obligation to allow a student to
take a voluntary leave of absence related to pregnancy or related
conditions for, at a minimum, a period that is deemed medically
necessary by their healthcare provider. The Department is persuaded by
the perspective offered by several commenters regarding their
experiences with recipients' absence policies that effectively punished
or caused students who were pregnant or experiencing pregnancy-related
conditions to stop participating in an education program or activity.
These experiences further demonstrate the importance of Sec.
106.40(b)(3)(iv).
The Department declines to further define ``academic status'' or
``leave of absence'' or adopt commenters' other suggested modifications
to Sec. 106.40(b)(3)(iv). As explained in greater detail in the July
2022 NPRM, a student's right to take leave for pregnancy or related
conditions has been included in the Title IX regulations since 1975,
and, like the proposed regulations, the final regulations are
consistent with the Department's longstanding interpretation of Title
IX regulations. See 87 FR 41521; 40 FR 24128 (codified at 45 CFR
86.40(b)(5) (1975)); see also 34 CFR 106.40(b)(5) (current); 1991
Pregnancy Pamphlet, at 6; 2013 Pregnancy Pamphlet, at 5. Moreover, the
Department's view is that reinstating a student to the academic status
that the student held when voluntary leave began, consistent with Sec.
106.40(b)(3)(iv), necessarily will require a recipient to provide a
student a meaningful opportunity and reasonable time to make up any
coursework or exams missed while on leave. This position accords with
the Department's view of the current Title IX regulations as stated in
the 2013 Pregnancy Pamphlet, at 10, and these final regulations
incorporate that position. Additionally, as discussed in more detail
above, a recipient has a distinct and separate obligation under Sec.
106.40(b)(3)(ii) to consult with the student to offer and implement
reasonable modifications that meet the student's individualized needs
to prevent sex discrimination and ensure equal access. A recipient must
meet its obligations under Sec. 106.40(b)(3) in all parts of its
education program or activity, including programs that grant
professional degrees or certifications or are subject to licensure
requirements.
The Department declines to specify how a recipient's obligation to
allow a student to take a voluntary leave of absence under Sec.
106.40(b)(3)(iv) interacts with compulsory attendance requirements for
students in elementary school or secondary school. This is a fact-
specific inquiry that depends on the specifics of a State or local law
and whether the application of such law conflicts with a recipient's
obligations under Title IX or its regulations, consistent with the
preemption provision at Sec. 106.6(b). For a more detailed explanation
of preemption in the final regulations, see the discussion of Sec.
106.6(b).
The Department clarifies that, consistent with the existing
regulations, a recipient may not preclude a student from participating
in any part of an education program or activity due to pregnancy or
related conditions under final Sec. 106.40(b)(1). This prohibition
extends to athletic and other extracurricular opportunities.
Additionally, as noted in the July 2022 NPRM, the Department recognizes
that if a student elects to take a voluntary leave of absence under
Sec. 106.40(b)(3)(iv), 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 be able to participate due to timing or
other logistical reasons. 87 FR 41521. Therefore, although the final
regulations create a presumption that a student returning from leave
should be reinstated to the same extracurricular status, there may be
some limited instances when exact reinstatement would not be
administratively possible or practicable under the circumstances.
Beyond these general principles, the Department declines to further
specify the application of Sec. 106.40(b)(3)(iv) to student athletes
because this is a fact-specific determination best made on a case-by-
case basis.
Similarly, the Department declines to further specify timelines for
reinstatement after a leave of absence because this is also a fact-
intensive inquiry that must be determined on a case-by-case basis.
However, the Department has revised the final regulations to further
clarify that any leave of absence must be voluntary on the part of the
student and that the medically necessary period is only a minimum
requirement. In addition, Sec. 106.40(b)(3)(iv) clarifies that to the
extent a student qualifies for leave under a recipient's 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. When a student needs
additional time beyond that available under Sec. 106.40(b)(3)(iv), the
recipient should consider such a request under the reasonable
modification standard of Sec. 106.40(b)(3)(ii).
Changes: The Department has redesignated proposed Sec.
106.40(b)(3)(iii) as Sec. 106.40(b)(3)(iv) in the final regulations
and made revisions to clarify further that ``voluntary'' refers to a
student's decision to take a leave of absence, and that a recipient
needs to allow a student to take leave under a leave policy that allows
for a greater period of time than what is medically necessary only if
the student qualifies for leave under that policy.
Implementation
Comments: Some commenters requested clarification of whether an
admitted student would be entitled to a pregnancy-related leave of
absence before the start of classes. Specifically, commenters asked how
the proposed regulations would operate if an admitted student needed to
miss the first few weeks of class due to pregnancy or related
conditions. Commenters reported that many recipients currently require
admitted students who need a leave of absence before the start of
classes to withdraw and reapply to the recipient's education program or
activity, which could impede their academic progress if a class is only
offered once a year.
Some commenters asserted that the Department should further modify
or clarify Sec. 106.40(b)(3)(ii) and (iv) considering enrollment
practices and leave policies at postsecondary institutions related to
financial aid eligibility. Specifically, commenters interpreted
financial aid regulations as limiting the amount of leave a student may
take to one leave of absence for up to 180 days per academic year, and
only after completion of at least one semester. Some commenters also
stated that if a student goes over this limit or has not completed one
semester, many recipients' leave policies require the student to
withdraw from the recipient's education program or activity and reapply
for admission--regardless of whether the leave of absence is due to
pregnancy or related conditions. One commenter indicated that the
proposed leave provision raises questions about who would be
responsible for any additional expenses incurred as a result of a
student taking medically necessary leave, such as additional student
loan and interest expenses when a student postpones reenrollment to
accommodate a structured cohort program, particularly in clinical
healthcare programs. Other commenters urged the Department to require a
recipient to maintain the student's access to benefits while on leave,
such as housing,
[[Page 33785]]
financial aid, scholarships, and health care, on the grounds that a
student can lose access to these benefits if required to withdraw or
deregister while on medically necessary leave.
Discussion: The Department's definition of ``student'' in its Title
IX regulations, which dates to 1975, is broad and includes anyone
admitted to a recipient institution. See 40 FR 24128 (codified at 45
CFR 86.2(q) (1975) (defining student to mean ``a person who has gained
admission'')); 34 CFR 106.2(r) (current) (same definition); Sec. 106.2
(same definition). Under final Sec. 106.40(b)(3)(iv), a recipient must
allow a 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 healthcare
provider. Therefore, any admitted or enrolled student would qualify for
a voluntary leave of absence for pregnancy or related conditions. A
recipient may not require a student who needs a leave of absence due to
pregnancy or related conditions prior to the school year starting or in
the first few weeks of classes to withdraw and reapply to the education
program or activity because doing so would be inconsistent with Sec.
106.40(b)(3)(iv). To the extent that a recipient maintains a general
policy requiring that all students who need a leave of absence prior to
the school year starting or in the first few weeks of classes must
withdraw and reapply, a student who requires such a leave due to
pregnancy or related conditions must be exempted from such a general
policy in order for the recipient to comply with Sec.
106.40(b)(3)(iv). To the extent a student needs leave that exceeds the
period of time deemed medically necessary by the student's healthcare
provider, a recipient must determine whether there is a reasonable
modification under Sec. 106.40(b)(3)(ii). With respect to general
information about a recipient's obligations under Sec.
106.40(b)(3)(iv) and requirements of the Federal Student Aid program as
it may relate to a recipient's leave policy, as discussed more fully
above, Sec. 106.40(b)(3)(iv) requires a recipient to excuse a
student's absences due to pregnancy or related conditions for as long
as the student's healthcare provider deems the absences to be medically
necessary. The recipient must allow the student to return to the same
academic status held as before medical leave began, which must include
giving the opportunity to make up any missed work. A recipient may also
offer the student alternatives to making up missed work, especially
after longer periods of leave. Consistent with Sec. 106.40(b)(4), a
recipient is not permitted to adopt or apply a medical leave policy
that treats a student who withdraws from school due to pregnancy or
related conditions worse than a student who withdraws from school due
to any other temporary medical condition.
The Federal student financial programs authorized by Title IV of
the Higher Education Act of 1965, as amended (Title IV), are
administered by the Department's Federal Student Aid office. 20 U.S.C.
1070a. Under the Department's regulations related to Title IV at 34 CFR
668.22(a)(1), if a student who has received Title IV grant or loan
funds withdraws from an education program or activity after beginning
attendance, the amount of Title IV grant or loan assistance earned by
the student must be determined. If the amount the recipient receives on
behalf of the student is greater than the amount earned, the unearned
funds must be returned to the Department. See generally 34 CFR 668.22.
This is often referred to as the ``return to Title IV'' funds
calculation. However, a recipient's Title IX obligation to provide a
voluntary leave of absence for pregnancy or related conditions does not
necessarily require a recipient to meet its obligations under Title IV
in a manner that disadvantages a student who requests such leave. For
example, the Title IV regulations at 34 CFR 668.22(d)(1) explain that a
recipient does not have to treat a leave of absence as a withdrawal for
Title IV purposes, if it is an approved leave of absence and meets the
requirements in 34 CFR 668.22(d)(1)(i)-(viii). If a leave of absence
meets these requirements, it is considered a temporary interruption and
is not counted as a withdrawal for Title IV purposes, so the recipient
is not required to perform the ``return to Title IV'' calculation and
return unearned funds to the Department, and there cannot be unearned
Title IV aid due from the student.
If a pregnant student's healthcare provider deems a leave of
absence medically necessary, the recipient would be required by Title
IX to grant the academic leave of absence for as long as the student's
healthcare provider deems it medically necessary. See 34 CFR
106.40(b)(3)(iv). The Title IV regulations governing approved leave of
absences are only applicable with regard to the process the recipient
must have in place to determine whether or not the student's leave of
absence is considered a withdrawal for Title IV purposes. Depending on
the facts of the case and, in particular, the length of the pregnant
student's academic leave of absence, such a leave of absence under
Sec. 106.40(b)(3)(iv) may also qualify as an approved leave of absence
for Title IV purposes. Determination of whether it qualifies depends on
the application of the factors specified in 34 CFR 668.22(d)(1)(i)-
(vii). In addition, the Title IV regulations governing the return of
funds do not prohibit a school from developing its own refund policy,
consistent with the Title IX requirements described above. If the
length of the leave of absence for pregnancy or related conditions in
combination with any other approved leaves of absence will exceed 180
days in a 12-month period, see id. Sec. 668.22(d)(1)(vi), the
recipient would be required to calculate the earned and unearned
portions of Title IV assistance and follow the other requirements in 34
CFR 668.22.
Changes: None.
Relation to Reasonable Modifications
Comments: One commenter asked the Department to clarify what
discretion a recipient has in implementing voluntary leaves of absence
under proposed Sec. 106.40(b)(3)(iv) if leave would fundamentally
alter the recipient's education program or activity, such as when a
sequenced curriculum would require a student to take leave for a period
that is longer than medically necessary or more than the amount of
leave desired by the student.
Discussion: The Department clarifies that the inquiry related to
fundamental alteration relates to reasonable modifications under Sec.
106.40(b)(3)(ii). As such, it has no bearing on a recipient's
obligation to allow a voluntary leave of absence for pregnancy or
related conditions under Sec. 106.40(b)(3)(iv). Since 1975, a
recipient has had an obligation to allow a student to take a voluntary
leave of absence for as long as deemed medically necessary for
pregnancy or related conditions and to reinstate the student to the
same status held before leave was taken. 40 FR 24128 (codified at 45
CFR 86.40(b)(5) (1975)); see also 34 CFR 106.40(b)(5) (current).
Consistent with longstanding regulations and the need to ensure access
to education for students who are pregnant or experiencing pregnancy-
related conditions, Sec. 106.40(b)(3)(iv) requires a recipient to, at
a minimum, offer and provide such leave and reinstatement, regardless
of whether the recipient believes that such leave and reinstatement
would fundamentally alter the nature of the recipient's education
program or activity. A
[[Page 33786]]
recipient otherwise has discretion in how it administers voluntary
leaves of absence, as long as implementation is consistent with Sec.
106.40(b)(3)(iv), Title IX, and this part, including the requirement to
treat pregnancy or related conditions in the same manner and under the
same medical leave policies as any other temporary medical condition
under Sec. 106.40(b)(4) and the general prohibition on discrimination
based on pregnancy or related conditions under Sec. 106.40(b)(1).
The Department preserved the requirement to offer voluntary leaves
of absence for pregnancy or related conditions in the final regulations
because it is widely known that most persons experiencing pregnancy or
related conditions will need to take some medically necessary leave--
most commonly after childbirth or termination of pregnancy, although
some common pregnancy-related conditions may require a person to take a
leave of absence during a pregnancy, such as preeclampsia or placenta
previa. As a result, the ability to take voluntary leaves of absence is
critical to ensuring pregnancy or related conditions do not deprive
students of equal educational opportunities. Allowing a student to take
leave and preserve their status in an education program advances Title
IX's nondiscrimination objectives much more effectively than, for
example, requiring a student to withdraw from a program and then go
through the administratively burdensome and costly process of
reenrolling in the future. Further, pregnancy is inherently time-
limited and affects a segment of the general population based on sex.
As such, Sec. 106.40(b)(3)(iv) sets forth a simple and straightforward
process that recipients can apply consistently with minimal
administrative burdens to fulfill Title IX's mandate to prevent sex
discrimination and ensure equal access to students who are pregnant or
experiencing pregnancy-related conditions.
Changes: None.
Determination of Leave Period
Comments: The Department notes that proposed Sec.
106.40(b)(3)(iii) has been revised and redesignated as Sec.
106.40(b)(3)(iv) in the final regulations, and the following comment
summaries and discussion refer to this provision as Sec.
106.40(b)(3)(iv).
Several commenters supported language in Sec. 106.40(b)(3)(iv)
that would allow any licensed healthcare provider to verify medically
necessary leave. Some commenters stated that this change would
recognize that a student may be under the care of a provider who is not
a physician, such as a nurse practitioner, midwife, doula, registered
nurse, or lactation consultant. Some commenters stated this language
would recognize that contemporary medical standards commonly allow
advanced practice clinicians to provide care and that not every student
has easy access to a physician, particularly students from economically
disadvantaged backgrounds.
One commenter highlighted the credentials and prevalence of nurse
practitioners in health care. The commenter also stated that proposed
Sec. 106.40(b)(3)(iv) would be consistent with recommendations from
the National Academies of Science, Engineering, and Medicine, World
Health Organization, U.S. Department of Health and Human Services,
Federal Trade Commission, and several nonprofit policy organizations.
Discussion: The Department agrees with the perspective provided by
commenters who stated the language in Sec. 106.40(b)(3)(iv) would
reflect contemporary medical standards, which recognize that a student
may be under the care of a licensed healthcare provider who is not a
physician. The Department also agrees with comments noting that
students may not have ready and affordable access to physician care due
to economic, geographic, or many other reasons. Finally, the Department
acknowledges, and its conclusions are reinforced by, the supportive
information regarding the qualifications of nurse practitioners to
provide high-quality, cost-effective care, particularly in rural or
economically disadvantaged areas.
Given commenters' interests in including a wide array of healthcare
providers under the provision and not overburdening recipients or
students with technical requirements regarding licensure, the
Department clarifies that the term ``licensed'' in final Sec.
106.40(b)(3)(iv) broadly encompasses any healthcare professional who is
qualified to practice in their State. Recognizing that some students
may travel for needed healthcare (because, for instance, the care they
need is not available locally or they receive care in their home State
during a break), final Sec. 106.40(b)(3)(iv) does not require
recipients to verify licensure or otherwise understand varying
licensure requirements for different healthcare professions within and
between the States, which could be onerous, inefficient, and confusing.
Changes: The Department has redesignated proposed Sec.
106.40(b)(3)(iii) as Sec. 106.40(b)(3)(iv) in the final regulations
and revised the provision to clarify that the licensed healthcare
provider who determines a medically necessary absence need not be a
physician.
9. Section 106.40(b)(3)(v) Pregnancy or Related Conditions--Lactation
Space
Comments: The Department notes that proposed Sec. 106.40(b)(3)(iv)
has been revised and redesignated as Sec. 106.40(b)(3)(v) in the final
regulations, and the following comment summaries and discussion refer
to this provision as Sec. 106.40(b)(3)(v).
Commenters generally supported the requirement that a recipient
provide a private space and breaks for a student who is lactating and
appreciated that Sec. 106.40(b)(3)(v) would require a lactation space
be clean and usable for both breastfeeding and pumping. Commenters
asserted that the lack of a lactation space in a recipient's education
program or activity is an issue that affects many students, impairs the
health of students who are lactating and their children, interrupts
learning and other educational opportunities, and increases absences
due to illness.
A group of commenters noted that requiring a recipient to provide a
lactation space helps support students' choices related to the health
and nutrition of their child. The group of commenters provided examples
of recipient practices that they reported were inconsistent and
insufficient for students who are lactating, including a mother who was
so discouraged by her school's failure to provide a lactation space
that she almost disenrolled; a student who delayed obtaining her degree
because her postsecondary institution did not provide a lactation
space; and another student who stated that her school did not allow her
to pump, which caused her to stop producing milk. The commenters noted
that because each pumping session can take between fifteen to forty
minutes, a lactation space is important to maintain access to a
recipient's education program or activity. Many commenters noted that
without a designated, private lactation space, a student who is
pregnant or experiencing pregnancy-related conditions may resort to
pumping in places such as a car, janitor's closet, or bathroom stall.
Commenters added that a lack of privacy for students may lead to sexual
harassment, bullying, stress-induced interruptions that could affect
the student's ability to produce milk, inconvenience, and feelings of
isolation. Commenters also asserted that requiring a recipient to
provide a lactation space that is not a bathroom will make the
[[Page 33787]]
process of breastfeeding, pumping, and filling bottles more hygienic.
Further, several commenters stated that Sec. 106.40(b)(3)(v) would
significantly improve public health and be consistent with
recommendations from the World Health Organization related to
breastfeeding. Other commenters stated that Sec. 106.40(b)(3)(v) would
improve the health of students by minimizing obstacles to expressing
breast milk and allowing students to reap the health benefits of
breastfeeding, including a reduced long-term risk of diabetes,
cardiovascular disease, and breast or ovarian cancer. Commenters also
noted that an inability to express milk as frequently as every few
hours often leads to pain, illness, infection, and reduced milk supply,
and can result in an eventual inability to continue nursing. Commenters
stated that a student's ability to breastfeed or express breast milk
became even more important due to nationwide shortages in baby formula
in 2022 and 2023.
Many commenters stated that providing a lactation space is a widely
recognized accommodation that has been acknowledged by administrative
agencies, Federal courts, and legal scholars to be consistent with
other laws, such as the ACA, the FLSA, and State laws. Commenters
asserted that because a recipient must follow these laws, compliance
with Sec. 106.40(b)(3)(v) would not be burdensome.
In contrast, one commenter asserted that Sec. 106.40(b)(3)(v)
would exceed the scope of Title IX, while another commenter asserted
that the proposed regulation's cost-benefit analysis was insufficient.
One commenter expressed concern that Sec. 106.40(b)(3)(v) may be
unworkable for a small elementary school or secondary school where
space is limited and urged the Department to allow a recipient
flexibility in complying with this requirement in final regulations.
Other commenters urged the Department to modify Sec.
106.40(b)(3)(v) to require a recipient to equip a lactation space with
a chair, flat surface, electrical outlet, running water, and a
refrigerator or cooler to store expressed milk. These commenters also
stated that a lactation space should be in reasonable proximity to a
student's specific place of study.
Some commenters asked the Department to clarify where lactation
spaces must be located, the required number of lactation spaces based
on certain factors, and whether a recipient is required to make
lactation spaces accessible during evenings and weekends. One commenter
asked whether a recipient is required to construct new lactation spaces
or features to comply with Sec. 106.40(b)(3)(v). Some commenters
expressed concern about how the administration of a lactation space
would be handled if multiple students needed to access the space
simultaneously.
Some commenters recommended that the Department change Sec.
106.40(b)(3)(v) to state that a student has a right to express milk or
breastfeed in a place other than a designated lactation space, such as
in an office, at a childcare facility, or in a public space to be
consistent with State or local laws that allow a person to breastfeed
in any place they are otherwise allowed to be.
In contrast, other commenters asked the Department to clarify the
circumstances in which a student in an elementary school or secondary
school would be allowed to breastfeed a child in a lactation space and
how the student's ability to breastfeed would change depending on
whether the school had onsite childcare. One commenter suggested that
the Department remove the words ``or breastfeeding'' from Sec.
106.40(b)(3)(v) because the term implied an obligation to accommodate
the presence of an infant in a recipient's education program or
activity, which the commenter stated may not be safe or practicable in
all circumstances.
Some commenters urged the Department to clarify that the
requirement to provide lactation space is an obligation of the
recipient, rather than a personal obligation of the Title IX
Coordinator. Other commenters suggested that the Department revise the
language to use terms such as ``express milk'' and ``nursing'' to be
more inclusive of all students.
Some commenters urged the Department to require a recipient to
treat breaks to use a lactation space, including those during class and
exams, as well as travel time to reach the lactation space, as
medically necessary absences for which medical documentation specifying
when or how long someone must express milk is not required. Commenters
stated that many students have difficulty accessing healthcare and that
it would be overly burdensome to require lactating students to document
lactation needs, which are common with pregnancy or related conditions
and easily anticipated.
Discussion: The Department agrees that Sec. 106.40(b)(3)(v) will
help students who are lactating maintain access to an education program
or activity by improving those students' ability to pursue their
education while lactating. Having reviewed and considered all comments
received, the Department concludes that without Sec. 106.40(b)(3)(v),
a student who is lactating would likely face significant barriers to
participating in and benefiting from a recipient's education program or
activity. These barriers 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.
Further, the Department disagrees that Sec. 106.40(b)(3)(v)
exceeds the Department's authority. Congress has authorized the
Department to issue regulations to effectuate Title IX's prohibition on
sex discrimination in education programs or activities that receive
Federal financial assistance consistent with achievement of the
objectives of the statute. See 20 U.S.C. 1682; Gebser, 524 U.S. at 292.
Additionally, Title IX regulations have long included provisions that
require a recipient to take proactive steps to ensure equal treatment
and access for students who are pregnant or experiencing pregnancy-
related conditions. See 34 CFR 106.40(b)(5) (current). As discussed
above and in the July 2022 NPRM, these requirements are part and parcel
of ensuring that Title IX's nondiscrimination requirements are met, as
the failure to take these steps often reflects sex-based stereotypes
about the roles of men and women, sex-based indifference to the needs
of this population, animus, or a failure to accommodate conditions
associated with women as effectively as those associated with men. See
87 FR 41513. The assurance of access to clean, private, and secure
lactation spaces in Sec. 106.40(b)(3)(v) represents an appropriate
application of existing Title IX principles to better effectuate the
statute considering the complaints received by OCR in recent years, and
the well-demonstrated, practical needs of lactating students.
Moreover, the Department carefully considered not only benefits but
also costs and the abilities of recipients to provide lactation space.
As explained in the July 2022 NPRM, the Department anticipates that a
recipient would be able to comply with Sec. 106.40(b)(3)(v) using
existing space at minimal cost, partly because there is no requirement
that a lactation space be a particular size or shape or include
particular structural features. See 87 FR 41560. Accordingly,
recipients are not required to construct new lactation spaces if an
existing space otherwise meets the requirements of Sec.
106.40(b)(3)(v). And while Sec. 106.40(b)(3)(v) may result in
increased
[[Page 33788]]
demand for lactation space or break time, such demand likely will vary
over time, based on the composition of the student population at any
time, which further reduces the potential impact to a recipient.
Further, these costs are justified by the benefits of requiring a
recipient to provide an appropriate space for a student who is
lactating, including allowing student-parents to remain in school
during the early months or years of a child's life, which helps
eliminate a sex-based barrier to education. Although there are limited
data quantifying the economic impacts of sex discrimination, the
Department's review of public comments shows that such barriers can
prevent students from obtaining a high school diploma, pursuing higher
education, or obtaining a postsecondary degree, which limits their
economic opportunities and may have long-term or generational impacts.
A more detailed discussion and analysis of the costs and benefits of
these final regulations is included in the Regulatory Impact Analysis.
Similarly, the assertion that a small elementary school, secondary
school, or other recipient would be unable to comply with Sec.
106.40(b)(3)(v) is speculative. At the time of the July 2022 NPRM,
nearly all recipients were already required to provide a similar
lactation space for non-exempt employees under a provision of the FLSA,
29 U.S.C. 207(r)(1). This provision has since been replaced by the PUMP
Act, 29 U.S.C. 218d, which expanded the requirement to provide
lactation space to most exempt employees as well. In addition, many
recipients are required to provide the same for employees generally
under many State laws. See 87 FR 41559 (collecting State laws). Nothing
in the final regulations prohibits a recipient from complying with
Sec. 106.40(b)(3)(v) by ensuring a student who is lactating can access
an existing employee lactation space or other space that otherwise
meets the requirements of Sec. 106.40(b)(3)(v).
The Department acknowledges concerns voiced by commenters that
certain factors, including the location and other restrictions on the
use of lactation spaces, could effectively make them inaccessible to a
student who is lactating. Accordingly, the Department has revised Sec.
106.40(b)(3)(v) to clarify that a recipient must ensure that a student
can access a lactation space, rather than merely ensuring the
availability of one.
Section 106.40(b)(3)(v) requires that a recipient ensure a
student's access to a lactation space that ``may be used'' for pumping
or breastfeeding as needed. The Department emphasizes that, as with all
the requirements under final Sec. 106.40(b)(3), the recipient's
provision of lactation space must be prompt and effective to prevent
sex discrimination and ensure equal access to the recipient's education
program or activity. Whether the lactation space a recipient provides
meets these standards is best determined on a case-by-case basis, but
generally means that the space is functional, appropriate, and safe for
the student's use. The Department however declines to adopt additional
specific requirements about the size and setup of lactation spaces for
students at this time to preserve recipient flexibility and to be able
to review the degree of and obstacles to compliance with other Federal
lactation laws. Section 106.40(b)(3)(v) sets minimum standards for a
recipient's lactation space and nothing in the final regulations
prohibits a recipient from offering additional features in its
lactation space to increase functionality and comfort, either as
reasonable modifications under Sec. 106.40(b)(3)(ii) or otherwise.
Likewise, the final regulations do not preempt State or local laws that
require lactation spaces to have certain features, such as a chair, a
flat surface, an electrical outlet, running water, or a refrigerated
place to store expressed milk. The Department will take commenters'
suggestions under consideration for possible technical assistance.
The Department also declines to remove references to breastfeeding
from Sec. 106.40(b)(3)(v). This provision is focused solely on what
may take place in the lactation space that a recipient must make
accessible to its students. To further clarify, if a student is already
permitted to bring their child into the recipient's education program
or activity (e.g., through onsite childcare, a recipient's visitor
policy, or a State or local law), they may use lactation spaces for
breastfeeding instead of pumping. Moreover, nothing in the final
regulations precludes a lactating student or employee from expressing
breast milk or breastfeeding outside of the recipient's designated
lactation spaces if a State or local law allows it.
Additionally, to ensure clarity in the implementation of the final
regulations, the Department declines commenters' suggestion to revise
the terminology used in Sec. 106.40(b)(3)(v) but emphasizes that a
recipient must ensure that any student who is lactating can voluntarily
access a lactation space that complies with Sec. 106.40(b)(3)(v)
regardless of a student's gender identity or gender expression.
Moreover, nothing in the final regulations prohibits a recipient from
using any of the terminology suggested by commenters in its
communications with students.
The Department clarifies that whether a recipient must make a
lactation space accessible to a student in the evenings or on weekends
depends on a variety of factors, including whether an inability to
access a lactation space would frustrate a lactating student's ability
to participate in the recipient's education program or activity, which
may include extracurricular activities or attendance at school-related
events in the evenings or on weekends. As long as the lactation space
complies with the requirements of Sec. 106.40(b)(3)(v), a recipient
has discretion in where a lactation space is located; the number of
lactation spaces; and how it handles the administration of a lactation
space, including managing access to lactation spaces for multiple
students, which may include suggestions proposed by commenters such as
signage, a scheduling system, or a multi-person space separated by
partitions that are shielded from view and free from intrusion from
others.
The Department agrees with commenters that the recipient, not the
Title IX Coordinator, is ultimately responsible for ensuring that a
student can access a lactation space. Accordingly, the Department has
revised Sec. 106.40(b)(3) to clarify that it is the recipient's
responsibility to take, and the Title IX Coordinator's responsibility
to coordinate, specific actions under Sec. 106.40(b)(3), including a
student's access to a lactation space. For further explanation of the
role of the Title IX Coordinator in connection with student pregnancy
or related conditions, see the discussion of Sec. 106.40(b)(3).
The Department agrees that as a general matter, medical
documentation is unnecessary for a recipient to provide access to a
lactation space and unduly burdensome to the student, particularly
given the fact that many students lack access to or do not obtain
maternity care.\84\ As such, it would be difficult for
[[Page 33789]]
many lactating students to obtain medical documentation--especially on
an ongoing basis--as a condition of accessing a lactation space.
Accordingly, the Department has added Sec. 106.40(b)(3)(vi) to the
final regulations to clarify that a recipient must not require a
student to provide supporting documentation to confirm lactation needs
in connection with, for example, reasonable modifications or to gain
access to a lactation space. For further explanation of the limitation
on recipient requests for supporting documentation, see the discussion
of Sec. 106.40(b)(3)(vi).
---------------------------------------------------------------------------
\84\ See Christina Brigance et al., March of Dimes, Nowhere to
Go: Maternity Care Deserts Across the U.S, at 4-5 (2022), https://www.marchofdimes.org/sites/default/files/2022-10/2022_Maternity_Care_Report.pdf (reporting that approximately 12
percent of births in the United States occur in counties with
limited or no access to maternity care and 4.7 million women live in
counties with limited maternity care access); Presidential Task
Force of Redefining the Postpartum Visit, Committee on Obstetric
Practice, American College of Obstetricians and Gynecologists
Committee Opinion No. 736: Optimizing Postpartum Care (May 2018),
https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2018/05/optimizing-postpartum-care (finding that as many as
40% of women do not attend a postpartum visit and that attendance
rates are lower among populations with limited resources, which
contributes to health disparities).
---------------------------------------------------------------------------
Changes: The Department has redesignated proposed Sec.
106.40(b)(3)(iv) as Sec. 106.40(b)(3)(v) in the final regulations.
Final Sec. 106.40(b)(3) now states that the Title IX Coordinator must
coordinate actions under paragraphs (b)(3)(i) through (vi), and Sec.
106.40(b)(3)(v) now states that a recipient must ensure that the
student can access a lactation space.
10. Section 106.40(b)(3)(vi) Pregnancy or Related Conditions--
Limitation on Supporting Documentation
Comments: The Department notes that proposed Sec. 106.40(b)(3)(ii)
and (4) have been redesignated as Sec. 106.40(b)(3)(ii) in the final
regulations, and the following comment summaries and discussion refer
to these provisions as Sec. 106.40(b)(3)(ii).
Several commenters urged the Department to state in the final
regulations that medical documentation is frequently or typically
unnecessary for a recipient to provide a requested modification, while
other commenters expressed concern that the proposed regulations would
be silent as to whether a recipient can require such supporting
documentation. The commenters stated that requiring documentation for
modifications such as increased bathroom breaks, a larger desk, or
lactation accommodations would be unnecessarily burdensome for a
student and could be used to harass or retaliate against a student who
is pregnant or experiencing pregnancy-related conditions. One
commenter, a legal service provider, shared that they regularly receive
calls about recipients requiring students to obtain medical
documentation on short notice and at significant expense, which often
delays or prevents a student from receiving these modifications, even
when the need is obvious.
Discussion: The Department agrees that as a general matter medical
documentation is unnecessary for a recipient to determine the
reasonable modifications it will offer for pregnancy or related
conditions, or to take the specific actions identified under Sec.
106.40(b)(3)(ii) through (v), including providing access to a lactation
space. Accordingly, the Department has added Sec. 106.40(b)(3)(vi) to
the final regulations to clarify that a recipient must not require
supporting documentation under Sec. 106.40(b)(3)(ii) through (v)
unless the documentation is necessary and reasonable under the
circumstances for the recipient to determine the reasonable
modifications to offer or other specific actions to take. As discussed
below, the Department has also included in final Sec. 106.40(b)(3)(vi)
a non-exhaustive list of situations in which it would not be necessary
and reasonable for a recipient to require a student to provide
supporting documentation and in which a recipient is therefore
prohibited from requiring documentation.
For several important reasons, the Department emphasizes that the
final regulations do not require a recipient to seek supporting
documentation from a student who seeks specific action under Sec.
106.40(b)(3)(ii) through (v) in any circumstances. First, the
Department notes that students who are pregnant or experiencing
pregnancy-related conditions may need modifications before they have
had any medical appointments. For example, some students may experience
morning sickness and nausea early in their pregnancies and need
modifications such as late arrival, breaks during class, or access to
online instruction. Second, as discussed above, the Department further
recognizes that it may be difficult for a student who is pregnant or
experiencing pregnancy-related conditions to obtain an immediate
appointment with a healthcare provider early in a pregnancy due to lack
of access.\85\ For example, according to one study, almost a quarter of
women who gave birth did not receive prenatal care during their first
trimester.\86\ Finally, even for students who have access to medical
care, needs may develop between scheduled medical appointments, such
that requiring documentation in those situations would increase the
cost to the student and could require them to take additional leave in
order to obtain the documentation. For example, early in a pregnancy
when medical appointments tend to be less frequent, a student could
develop increasingly severe morning sickness in between medical
appointments that warrants reasonable modifications that cannot wait
until the next medical appointment, by which time the severeness of the
morning sickness may or may not have abated.
---------------------------------------------------------------------------
\85\ See Christina Brigance et al., March of Dimes, Nowhere to
Go: Maternity Care Deserts Across the U.S, at 4-5 (2022), https://www.marchofdimes.org/sites/default/files/2022-10/2022_Maternity_Care_Report.pdf. Even where such care exists, it is
not typically offered or accessed in the earliest weeks of
pregnancy. See Am. Pregnancy Ass'n, Your First Prenatal Visit,
https://americanpregnancy.org/healthy-pregnancy/planning/first-prenatal-visit/ (last visited Mar. 12, 2024) (stating that the first
prenatal visit for individuals who did not meet with their health
care provider pre-pregnancy is generally around 8 weeks after their
last menstrual period); Boston Med. Ctr., Newly Pregnant?, https://www.bmc.org/newly-pregnant (last visited Mar. 12, 2024) (stating
that the first prenatal appointment will be scheduled between the
8th and 12th weeks of pregnancy).
\86\ Joyce A. Martin et al., Ctrs. for Disease Control &
Prevention, Births in the United States, 2019, 2 (Oct. 2020),
https://www.cdc.gov/nchs/data/databriefs/db387-H.pdf (indicating
that, in 2019, almost 23 percent of women who gave birth did not
receive prenatal care during the first trimester).
---------------------------------------------------------------------------
Accordingly, consistent with Sec. 106.40(b)(3)(ii)'s emphasis on
the importance of ensuring consultation with a student to meet their
individualized needs in a prompt and effective manner, a recipient may
simply discuss with the student the nature of the pregnancy-related
need and the desired modification or action without requesting
supporting documentation. In virtually all situations, proceeding
without documentation, or based on a student's self-attestation of
their needs, will be the least burdensome for the student and enable
the recipient to meet the student's needs fastest.
When a recipient chooses to require supporting documentation,
however, clearly defined limits on such requests are critical to ensure
that recipients do not overburden students or frustrate Title IX's
purpose. Thus, final Sec. 106.40(b)(3)(vi) makes clear that a
recipient's ability to require supporting documentation is restricted
under final Sec. 106.40(b)(3)(vi), which provides that the
documentation must be only that which is necessary and reasonable under
the circumstances for the recipient to determine the reasonable
modifications to make or whether to take additional specific actions
under Sec. 106.40(b)(3)(ii) through (v). Necessary and reasonable
documentation generally includes no more than is sufficient to
confirm--in a manner that is fair to the student under the
circumstances--that a student has a need related to pregnancy or
related conditions that requires a reasonable modification or other
specific action under Sec. 106.40(b)(3)(ii) through (v).
For example, if a student requests a reasonable modification in the
form of access to online or homebound
[[Page 33790]]
education to follow their healthcare provider's recommendation of bed
rest during the student's pregnancy, it may be necessary and reasonable
under the circumstances for a recipient to require documentation from
the student's healthcare provider to support a student's reasonable
modification request (i.e., that the student is or will be on medically
ordered bed rest during their pregnancy). However, in this case, it
would not be necessary and reasonable for a recipient to require
additional supporting documentation to verify the pregnancy itself or
other unrelated medical details regarding the pregnancy (such as the
date of the student's last menstrual cycle, or whether fetal
development is appropriate)--particularly if the student has already
provided self-confirmation of the pregnancy.
A recipient may not justify the denial of a reasonable modification
or other specific action under Sec. 106.40(b)(3)(ii) through (v) based
on the lack of documentation if its request for documentation does not
comport with Sec. 106.40(b)(3)(vi).
To provide further clarity, Sec. 106.40(b)(3)(vi) includes a non-
exhaustive list of situations in which it would not be necessary and
reasonable for a recipient to require a student to provide supporting
documentation and in which a recipient therefore may not require
documentation. These situations are not all mutually exclusive; several
may apply at the same time to bar a recipient from requesting
documentation depending on the circumstances.
First, it is not necessary and reasonable for the recipient to
require supporting documentation when the student's need for a specific
action under paragraphs (b)(3)(ii) through (v) is obvious. Depending on
the nature of the need, a need may be obvious based on the student's
self-confirmation of pregnancy or related conditions, or a pregnancy or
related condition that is itself physically obvious. For example, when
a student states or confirms they are pregnant and asks for a different
size uniform, the need for the uniform modification to accommodate the
pregnancy is obvious (regardless of whether the recipient agrees that
the student's pregnancy is easily noticeable), and the recipient may
not require supporting documentation. However, if a student states or
confirms that they are pregnant or experiencing pregnancy-related
conditions (or the fact of pregnancy is apparent in some other way),
but the need related to the pregnancy or related conditions or
parameters of a potential reasonable modification is not obvious, the
recipient may only request documentation relevant to the reasonable
modification. For example, if a student states or confirms that they
are pregnant and asks to avoid lifting heavy objects during their
clinical placement, it may be necessary and reasonable for the
recipient to request documentation about the need such as the extent of
the lifting restriction and its expected duration. However, if a
student provides such documentation but it omits confirmation of the
pregnancy itself, it would not be necessary and reasonable for the
recipient to request further documentation because the student's self-
confirmation is enough to establish pregnancy under Sec. 106.40(b)(3).
Second, it is not necessary and reasonable for the recipient to
require documentation when the student has previously provided the
recipient with sufficient supporting documentation--in other words,
when the student has already provided the recipient with sufficient
information to substantiate that the student has a need related to
pregnancy or related conditions and needs a modification of the
recipient's policy, practice, or procedure. For example, if a student
already provided documentation that they need to be periodically late
to class for the next two months because of morning sickness, it would
not be necessary and reasonable for the recipient to require the
student to provide a new note when the student requests a reasonable
modification to leave class early for a prenatal appointment. Such a
requirement would be onerous for the student, could deter them from
requesting reasonable modifications or other specific actions to ensure
equal access and prevent sex discrimination under Sec.
106.40(b)(3)(ii) through (v), and could potentially infringe on a
student's privacy related to treatment of their pregnancy or related
conditions. As another example, if a pregnant student provided
documentation of gestational diabetes to support modifications of
eating in class and needing leave for frequent medical appointments,
the recipient must not require the student to re-submit documentation
of gestational diabetes if the condition progresses and the student
later needs a new modification, such as breaks to administer insulin.
In such a case, it may be necessary and reasonable for the recipient to
request documentation to confirm information not already covered by the
prior documentation, such as the need to take breaks during class, as
opposed to re-confirming the underlying condition itself. However, the
Department reiterates that nothing in these final regulations require a
recipient to seek any documentation to determine what reasonable
modifications to offer, and that offering and making reasonable
modifications absent such documentation will be the least burdensome
for the student and enable the recipient to meet the student's needs
fastest.
Third, it is not necessary and reasonable for a recipient to
require documentation when a student states or confirms that they are
pregnant or are experiencing pregnancy-related conditions and asks for
the following reasonable modifications: (1) carrying or keeping water
nearby and drinking; (2) using a bigger desk; (3) sitting or standing;
or (4) taking breaks to eat, drink, or use the restroom. It is not
necessary and reasonable to require documentation, beyond self-
attestation, when a student is pregnant or experiencing pregnancy-
related conditions and seeks one of the four listed modifications
because these are a small set of commonly sought modifications that are
widely known to be needed during a pregnancy and for which
documentation would not be easily obtainable or necessary. As noted
above, particularly early in pregnancy, students are less likely to
have sought or been able to obtain an appointment with a healthcare
provider for their pregnancy. Further, they may not be able to obtain
an appointment with a healthcare provider repeatedly on short notice
for every need, as each becomes apparent. This position is consistent
with the overarching goal of Title IX to ensure equal access and that a
student is not deprived of educational opportunities due to pregnancy
or related conditions.
A fourth example in Sec. 106.40(b)(3)(vi)'s non-exhaustive list of
when it is not necessary and reasonable to require documentation
involves a student's lactation needs. Usually, beginning around or
shortly after birth, lactation occurs. As it is uncommon to obtain
medical documentation regarding the initiation of lactation (absent a
related medical condition, like mastitis), the Department has
determined that it is not necessary and reasonable for a recipient to
require documentation regarding lactation or pumping. And as a
practical matter, the Department notes that healthcare providers may
not be able to provide documentation regarding whether a student is
pumping, nor the types of modifications needed to pump breast milk. The
Department notes that not all students can or choose to breastfeed
after childbirth, and that those who do
[[Page 33791]]
elect to breastfeed do so for widely varying lengths of time. Although
the final regulations state that it is not necessary and reasonable for
a recipient to require supporting documentation for lactation or
pumping, a recipient will not violate the final regulations simply by
asking the student whether they require a lactation space while in the
recipient's education program or activity, which a recipient is
required to allow a student to access under Sec. 106.40(b)(3)(v).
Student confirmation--or a simple request to access a recipient's
lactation space--is sufficient confirmation.
A fifth example in Sec. 106.40(b)(3)(vi)'s non-exhaustive list of
when it is not necessary and reasonable to require documentation is
when the specific action under paragraphs (b)(3)(ii) through (v) is
available to students for reasons other than pregnancy or related
conditions without submitting supporting documentation. For example, if
a recipient has a policy or practice of only requiring a student to
submit supporting documentation if they miss three or more class
periods, it would not be necessary and reasonable for the recipient to
require supporting documentation from a student who requests to miss
less than three class periods for postpartum medical appointments.
Conversely, if a recipient has a policy or practice of requiring
documentation that is not consistent with Sec. 106.40(b)(3)(vi), and a
student requests specific action under paragraphs (b)(3)(ii) through
(v) that implicates such a policy or practice, the limitation on
supporting documentation in these final regulations would apply.
Changes: The Department has added Sec. 106.40(b)(3)(vi) to state
that a recipient must not require supporting documentation under Sec.
106.40(b)(3)(ii) through (v) unless the documentation is necessary and
reasonable for the recipient to determine the reasonable modifications
to make or whether to take additional specific actions under paragraphs
(b)(3)(ii) through (v). The Department has also included a non-
exhaustive list of situations when requiring supporting documentation
is not necessary and reasonable, including when the student's need for
a specific action under paragraphs (b)(3)(ii) through (v) is obvious,
such as when a student who is pregnant needs a uniform; when the
student has previously provided the recipient with sufficient
supporting documentation; when the reasonable modification because of
pregnancy or related conditions at issue is allowing a student to carry
or keep water near and drink, use a bigger desk, sit or stand, or take
breaks to eat, drink, or use the restroom; when the student has
lactation needs; and when the specific action under paragraphs
(b)(3)(ii) through (v) is available to students for reasons other than
pregnancy or related conditions without submitting supporting
documentation.
11. Section 106.40(b)(4) Pregnancy or Related Conditions--Comparable
Treatment to Other Temporary Medical Conditions
Comparable Treatment to Other Temporary Medical Conditions
Comments: The Department notes that proposed Sec. 106.40(b)(5) has
been redesignated as Sec. 106.40(b)(4) in the final regulations, and
the following comment summaries and discussion refer to the provision
as Sec. 106.40(b)(4).
One commenter supported proposed Sec. 106.40(b)(4), but
recommended revisions to avoid the inference that a recipient should
treat pregnancy as a temporary disability, which the commenter asserted
conflicts with disability law. The commenter suggested that the
Department amend the provision to clarify that a recipient should treat
a condition or complication related to pregnancy, but not the pregnancy
itself, as a temporary disability. Another commenter supported adding
the phrase ``or physical condition'' to the provision, stating that
recipients should be required to treat pregnant students or those with
related conditions comparably to how they treat students with another
temporary physical condition, whether or not it rises to the level of a
disability.
Discussion: The Department acknowledges commenters' support and
notes that the final regulations at Sec. 106.40(b)(4) will require a
recipient to treat pregnancy or related conditions comparably to how it
treats other temporary medical conditions when also consistent with a
student's rights under Sec. 106.40(b)(3).
The Department acknowledges the commenter's concern that the text
of Sec. 106.40(b)(4), as proposed, suggested that pregnancy standing
alone was a disability. The Department emphasizes, as explicitly stated
in the July 2022 NPRM, that while some conditions or complications
related to pregnancy might qualify as a disability under Section 504 or
the ADA, pregnancy itself is not a disability. 87 FR 41523. If someone
who is pregnant or experiencing pregnancy-related conditions has a
disability, the individual is protected from discrimination under
Section 504 and the ADA, whether or not the disability is related to
pregnancy.
Regarding Sec. 106.40(b)(4), the Department agrees with the
commenter that it is important to make clear that the provision applies
regardless of whether pregnancy-related conditions qualify as
disabilities under Section 504 or the ADA. The Department has also
determined that the proposed provision's reference to ``pregnancy or
related conditions or any temporary disability resulting therefrom''
contained a redundancy: the phrase ``or any temporary disability
resulting therefrom.'' Because the term ``pregnancy or related
conditions'' as defined in Sec. 106.2 would include any medical
conditions related to pregnancy, childbirth, termination of pregnancy,
or lactation, or recovery from any of those conditions, the term would
necessarily include any such resulting disabilities. The definition of
``pregnancy or related conditions'' in the final regulations is
adequate in scope for the purpose of Sec. 106.40(b)(4) without the
term ``temporary disability.''
To address these concerns, the Department revised some of the
language in Sec. 106.40(b)(4) of the final regulations compared to the
proposed regulations. Specifically, the Department changed the phrase
``in the same manner and under the same policies as any other temporary
disability or physical condition'' in the proposed regulations to ``in
the same manner and under the same policies as any other temporary
medical condition'' in the final regulations (emphases added). The
Department changed ``physical condition'' to ``medical condition'' to
clarify that the proper comparator with respect to a medical or
hospital benefit, service, plan, or policy is not limited to conditions
that are only physical in nature, and includes, for example,
psychological or emotional conditions.
This revision will eliminate an inference that pregnancy standing
alone is a disability and emphasize that pregnancy-related conditions
do not need to qualify as disabilities for Sec. 106.40(b)(4) to apply.
The revision will also clarify coverage in cases in which a recipient
does not have any medical or hospital benefit, service, plan, or policy
related to temporary disabilities, but may have such benefits,
services, plans, or policies related to temporary medical conditions
generally. The Department notes that a recipient's ``benefits,
services, plans, or policies'' with respect to temporary medical
conditions may be subsumed within its ``benefits, services, plans, or
policies''
[[Page 33792]]
related to disabilities, or they may be separate.
Changes: The Department has redesignated proposed Sec.
106.40(b)(5) as Sec. 106.40(b)(4) in the final regulations. In Sec.
106.40(b)(4) of the final regulations, the Department has removed the
references to ``disability'' and ``disabilities'' from the provision
and revised the term ``physical condition'' to ``medical condition.''
Final Sec. 106.40(b)(4) now states that, to the extent consistent with
paragraph (b)(3), a recipient must treat pregnancy or related
conditions in the same manner and under the same policies as any other
temporary medical 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.
Intersection With Disability Law
Comments: The Department notes that proposed Sec. 106.40(b)(5) has
been redesignated as Sec. 106.40(b)(4) in the final regulations, and
the following comment summaries and discussion refer to the provision
as Sec. 106.40(b)(4).
One commenter conveyed that because of the difference between Sec.
106.40(b)(4) and disability law, the way a temporary disability is
handled by a recipient would not necessarily align with the proposed
reasonable modifications because of pregnancy, and in some cases,
recipients will not be able to comply with both standards. The
commenter recommended that the Department either clarify its
requirement that a recipient treat pregnancy or related conditions as
it would any other temporary disability or modify the requirement to
provide greater flexibility for a recipient to address the needs of
students who are pregnant or have related conditions.
Discussion: The Department acknowledges the commenter's concern
that a difference in the requirements of Title IX and relevant
disability laws may, at times, require a recipient to maintain
different processes or reach different results when addressing
pregnancy or related conditions versus disabilities, and that this may
cause confusion. In response to the commenter's suggestions, the
Department clarifies in the final regulations when a recipient must
apply different rules as between pregnancy or related conditions and
other kinds of temporary medical conditions, and when they should be
treated the same. As proposed, the comparability provision would have
applied to the extent the matter was ``not otherwise addressed'' under
Sec. 106.40(b)(3). To add clarity, the Department revises Sec.
106.40(b)(4) in the final regulations to state the provision applies
only ``to the extent consistent with'' a recipient's obligations under
Sec. 106.40(b)(3).
The Department interprets ``consistent with'' to mean that Sec.
106.40(b)(4) applies when doing so would not deny or limit any person's
rights or the recipient's obligations under Sec. 106.40(b)(3). In
other words, Sec. 106.40(b)(3) provides a floor beneath which a
recipient's treatment of pregnancy and pregnancy-related conditions may
not fall, even if the recipient provides lesser protections for
students with non-pregnancy related temporary medical conditions. A
recipient must be able to meet its responsibilities under Sec.
106.40(b)(3) to take specific actions, such as providing reasonable
modifications, leave, and access to lactation space. When consistent
with these obligations, a recipient must further apply Sec.
106.40(b)(4) and treat pregnancy or related conditions in the same
manner and under the same policies as other temporary medical
conditions. As noted above, a recipient's ``benefits, services, plans,
or policies'' with respect to temporary medical conditions may be
subsumed within its ``benefits, services, plans, or policies'' related
to disabilities, or they may be separate.
For example, if a student requires breaks during class to attend to
pregnancy-related health needs, the recipient must provide reasonable
modifications consistent with Sec. 106.40(b)(3)(ii). However, a
recipient must additionally consider how students with other temporary
medical conditions are treated under Sec. 106.40(b)(4) with respect to
any medical or hospital benefit, service, plan, or policy it maintains.
To the extent that the recipient maintains a medical or disability
policy that provides breaks to students with temporary medical
conditions that is more generous (for example, providing longer or more
frequent breaks) than what it has provided to the pregnant student as a
reasonable modification, the recipient must apply this more generous
policy to the pregnant student. If its policy for non-pregnancy-related
temporary medical conditions is less generous than what it is required
to provide to the pregnant student as a reasonable modification,
however (for example, by disallowing breaks absent emergency
circumstances), the recipient must not apply this policy to the
pregnant student because it would deprive the student of rights under
Sec. 106.40(b)(3)(ii) and be inconsistent with the recipient's
obligations under Sec. 106.40(b)(3). There is no conflict between
these final regulations and a student's rights under the ADA or Section
504, because if a student's pregnancy-related condition qualifies as a
disability and the recipient's disability policy provides a more
generous result, that will have to be provided to the student.
Conversely, if the recipient's disability policy would provide a less
generous result, the recipient will have to provide the student with
the more generous benefit consistent with Sec. 106.40(b)(3).
The Department notes that Sec. 106.40(b)(4) also prohibits
discriminatory recipient policies even if a particular individual does
not request a reasonable modification. For example, if a recipient
maintains a policy that allows students with disabilities, including
temporary medical conditions that qualify as disabilities, to access
free at-home tutoring, but states that the option is not available to
pregnant students, the recipient will violate Sec. 106.40(b)(4)
because its policy treats pregnant students differently than students
with other types of temporary medical conditions. This would be the
case regardless of whether an individual student is pregnant and
seeking access to tutoring as a reasonable modification under Sec.
106.40(b)(3). See 2013 Pregnancy Pamphlet, at 6 (``Any special services
provided to students who have temporary medical conditions must also be
provided to a pregnant student . . . [so] if a school provides special
services, such as homebound instruction or tutoring, for students who
miss school because they have a temporary medical condition, it must do
the same for a student who misses school because of pregnancy or
childbirth.'').
The Department notes that a recipient's processes for pregnancy or
related conditions may be different from those for other temporary
medical conditions if treating the two identically would not be
consistent with Sec. 106.40(b)(3). For example, as noted by a
commenter, the Title IX regulations since 1975 have required that
voluntary leave for pregnancy or related conditions must be granted
consistent with medical necessity. 40 FR 24128 (codified at 45 CFR
86.40(b)(5) (1975)); 34 CFR 106.40(b)(5) (current). The Department
acknowledges that the process for obtaining leave may include
additional steps were a student seeking it in connection with a
temporary medical condition unrelated to pregnancy. However, to the
extent that additional steps are necessary for voluntary leave in
connection with a non-pregnancy-related temporary
[[Page 33793]]
medical condition, final Sec. 106.40(b)(3)(iv) requires that a
recipient permit voluntary leave for pregnancy or related conditions
without requiring those additional steps. The Department views the
requirements of the final regulations as necessary to prevent sex
discrimination and ensure equal access related to pregnancy or related
conditions. The final regulations sometimes provide a simpler process
for pregnancy or related conditions than might be required under laws
pertaining to disability because by its nature, pregnancy is inherently
time-limited, and because, for most uncomplicated pregnancies, the
types of supports that a student will need are similar and foreseeable.
Disability rights laws address a wider range of medical conditions and
therefore, a wider range of student needs and possible supports.
Accordingly, the same level of flexibility need not be afforded to the
recipient in the context of pregnancy or related conditions.
Changes: Proposed Sec. 106.40(b)(5) has been redesignated as Sec.
106.40(b)(4) in the final regulations and revised to state the
provision applies only ``to the extent consistent with'' a recipient's
obligations under Sec. 106.40(b)(3).
``Medical or Hospital'' Limitation
Comments: The Department notes that proposed Sec. 106.40(b)(5) has
been revised and redesignated as Sec. 106.40(b)(4) in the final
regulations, and the following comment summaries and discussion refer
to the provision as Sec. 106.40(b)(4).
One commenter suggested that the Department remove the words
``medical or hospital'' that modified the words ``benefit, service,
plan, or policy'' in proposed Sec. 106.40(b)(4) because, the commenter
said, the proposed provision is unclear in scope and removing any
limitation would further Title IX's purpose without giving preferential
treatment to one group of students based on their sex.
Discussion: The Department declines to alter the language of the
regulations in the manner suggested and disagrees that Sec.
106.40(b)(4) is unclear in scope. As the Department noted in the July
2022 NPRM, the current version of Sec. 106.40(b)(4) has required a
recipient to treat pregnancy or related conditions similarly to
temporary disabilities with respect to any ``medical or hospital''
benefit, service, plan, or policy the recipient offers for students
since the regulations were first promulgated in 1975. 87 FR 41523; 40
FR 24128 (codified at 45 CFR 86.40(b)(4) (1975)); 34 CFR 106.40(b)(4)
(current). As the Department indicated in the July 2022 NPRM, see 87 FR
41523, there is a need for greater clarity regarding the reasonable
modifications a recipient must make to prevent discrimination and
ensure equal access for pregnant students and those experiencing
related conditions, in part because the wording of the current version
of Sec. 106.40(b)(4) may have suggested that a recipient's
responsibility extends only to medical or hospital benefits, services,
plans, or policies. However, the reasonable modifications framework in
final Sec. 106.40(b)(3) alleviates the potential ambiguity in this
section and achieves Title IX's nondiscrimination goal. As discussed
above, the Department has further clarified the text of Sec.
106.40(b)(4) to state that the provision will apply only when
consistent with the recipient's obligations in Sec. 106.40(b)(3).
Changes: None.
12. Section 106.40(b)(5) Pregnancy or Related Conditions--Certification
To Participate
Comments: Some commenters supported the Department's proposed
prohibition on a recipient requiring a pregnant student to certify
physical ability before allowing the student's participation except
under narrow circumstances. Commenters' reasons for support included:
the need to counteract stereotypes regarding what is safe, appropriate,
or possible for a pregnant student, which may lead a recipient to
restrict or exclude a student from participation; ensuring students'
equal access to physically intensive extracurricular activities or
course-related placements in laboratories or medical facilities; and
because the provision reasonably limits required certification only to
courses or activities that included a physical component. Some
commenters appreciated that the Department revised the provision to
remove a prior reference to a student's emotional ability to
participate, which the commenters found paternalistic, outdated, and
stereotyping. Finally, some commenters supported the proposed
provision's clarification to apply to certifications from healthcare
providers in addition to physicians.
One commenter objected that the provision requiring a recipient to
compare pregnant students to non-pregnant students, as opposed to
students who are also receiving medical attention for a physical or
emotional condition, was inconsistent with Young v. United Parcel
Service, Inc., 575 U.S. 206, 228 (2015). The same commenter argued the
provision would require a recipient to allow pregnant students to
engage in unsafe activities, potentially exposing the recipient to
liability; surprise a recipient with medical emergencies that pregnant
students are more likely to have than other students who are neither
pregnant nor experiencing other medical conditions; and force a
recipient to require every student to obtain a doctor's note to engage
in a physical activity before it could lawfully require the same of a
pregnant student. The same commenter suggested that it may be
reasonable to limit the required certification to the question of
whether the student is physically able to participate but that a
student's emotional stability could be relevant in some narrow
situations.
One commenter opposed the proposed provision because they felt a
recipient and a coach should decide whether a pregnant student should
participate on an athletic team. Another commenter supported the
proposed regulations, provided the Department clarify that a recipient
should treat pregnancy-related conditions or complications, but not the
pregnancy itself, as temporary disabilities. A final commenter asked
the Department to clarify the distinction between paragraphs (b)(5)(i)
and (ii) of the proposed provision.
Discussion: The Department agrees with commenters that the
provision will limit the burden on students who are pregnant or
experiencing pregnancy-related conditions from unnecessary requests for
documentation to remain in their classes and activities. The Department
acknowledges comments that explained how recipient requests for such
certifications are often driven by harmful and inaccurate stereotypes
that may lead a recipient to exclude a student across a variety of
educational settings. To clarify the protection of this provision
further, the Department expanded the types of certifications subject to
this prohibition to include those by non-healthcare providers and ``any
other person.'' The Department clarifies that students who are pregnant
or experiencing pregnancy-related conditions should not be subject to a
certification of physical ability from a healthcare provider or any
other person that the student is physically able to participate in the
recipient's class, program, or extracurricular activity unless such
certification requirement satisfies Sec. 106.40(b)(5)(i)-(iii). A
request for certification from someone other than a student's
healthcare provider--such as a student's parent, legal representative,
coach, administrator, or advisor--would also be burdensome and
potentially subject a student with pregnancy or related conditions to
different treatment if inconsistent with Sec. 106.40(b)(5)(i)-(iii).
[[Page 33794]]
The Department disagrees that final Sec. 106.40(b)(5) would
require a recipient to allow a pregnant student to engage in unsafe
activities or surprise a recipient with medical emergencies. While this
provision is intended to ensure that a recipient does not subject a
student who is pregnant or experiencing pregnancy-related conditions to
discriminatory paperwork requirements, it does not dictate any
decisions a recipient may make as to participation in a program or
activity as those must be made on a case-by-case basis, depending on
relevant facts and consistent with Title IX's nondiscrimination
requirements in totality. Responding to a further commenter concern,
the Department agrees that--as set forth in Sec. 106.40(b)(5)--while
there is no requirement under Title IX that a recipient obtain pre-
participation certification from any student, to the extent that a
recipient wishes to require such certification from a pregnant student,
it must require the same of all students in a class, program, or
extracurricular activity.
With respect to the difference between paragraphs (b)(5)(i) and
(ii) of Sec. 106.40, the Department explains that paragraph (b)(5)(i)
pertains to the level of physical ability or health necessary to
participate in each activity, such as walking at a fast pace for 20
minutes or lifting more than 50 pounds, and paragraph (b)(5)(ii) means
that all students participating in the class or activity, even those
who are not pregnant or experiencing related conditions, are asked to
provide the same certification.
The Department agrees with commenters that removing the reference
in the current regulations to a student's emotional ability to
participate will underscore that a recipient should never assume that a
student who is pregnant or experiencing pregnancy-related conditions is
any less emotionally able to participate than any other student. If a
recipient requires a certification of emotional ability from a student
who is pregnant or experiencing pregnancy-related conditions, such
certification is subject to the general prohibition on sex
discrimination under Sec. 106.31(a)(1), the prohibition on sex
discrimination based on pregnancy or related conditions under Sec.
106.40(b)(1), and the requirement to provide students with reasonable
modifications because of pregnancy or related conditions under Sec.
106.40(b)(3)(ii), among other relevant provisions of the final
regulations. If the student has a pregnancy-related condition that
qualifies as a disability, such certification may also be subject to
Section 504 or the ADA.
Regarding the suggestion that a recipient and a coach should decide
whether a pregnant student remains on a team, the Department reminds
recipients that a recipient's decision regarding a pregnant student's
participation must comply with all specific actions to prevent
discrimination and ensure equal access set out in Sec. 106.40(b)(3),
including the provision of reasonable modifications. Additionally, to
the extent consistent with any reasonable modifications or other
student rights under Sec. 106.40(b)(3), if a school maintains a
medical or hospital benefit, service, plan, or policy related to
temporary medical conditions that is relevant to a potential exclusion
from a team, the recipient must also treat a pregnant student
consistent with those plans or policies under Sec. 106.40(b)(4).
Excluding a student based on pregnancy is sex discrimination in
violation of Sec. Sec. 106.31(a)(1) and 106.40(b)(1).
The Department disagrees with the contention that a recipient
should not have to treat students who are pregnant or experiencing
pregnancy-related conditions like non-pregnant students for the purpose
of determining whether they may be excluded from a recipient's
education program or activity. In this case, the Department finds it to
be a relevant and straightforward comparison to ensure that students
are not being discriminated against due to pregnancy or related
conditions. For example, because the provision requires all students to
be treated the same, it will be easy for pregnant students to know
whether a recipient is asking them for information different from the
rest of the class or team and permit the pregnant students to take
prompt action to enforce their rights.
The Department disagrees that the Supreme Court's decision in Young
controverts this approach. Young involved an employer's denial of an
employee's request for a pregnancy-related lifting restriction under
Title VII, in which the Court concluded that there was a genuine
dispute of material fact as to whether the employer provided more
favorable treatment to at least some non-pregnant employees ``whose
situation cannot reasonably be distinguished'' from the plaintiff.
Young, 575 U.S. at 231. The Court's holding did not limit the universe
of acceptable comparators to one specific type, such as only employees
with non-pregnancy-related health restrictions or suggest that other
possible comparators would not be allowed. See id. at 228. Likewise, in
the context of final Sec. 106.40(b)(5), the issue is that in most
cases, a student who is pregnant or experiencing pregnancy-related
conditions will have no limitation relevant to participation, making
comparison to the general student population the most appropriate.
The Department further disagrees with the assertion that the
provision prevents a recipient from requiring a student who is pregnant
or experiencing pregnancy-related conditions from providing
certification as to physical ability; to the contrary, the provision
sets out clearly that a recipient may do so when (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
Title IX regulations. This provides the appropriate framework to ensure
that a student who is pregnant or experiencing pregnancy-related
conditions is asked for relevant information on equal footing with
other students, while balancing a recipient's interest in student
safety.
Further, the Department did not intend to suggest that pregnancy,
standing alone, is a disability. The Department reemphasizes, as
explicitly stated in the July 2022 NPRM, that while some conditions or
complications related to pregnancy might qualify as a disability under
Section 504 or the ADA, pregnancy itself is not a disability. 87 FR
41523. If someone who is pregnant or experiencing pregnancy-related
conditions has a disability, the ADA or Section 504 may apply, whether
or not the disability is related to pregnancy. However, the Department
notes that, as explained more fully in the discussion of final Sec.
106.40(b)(4), that provision requires a recipient, when consistent with
Sec. 106.40(b)(3), to treat students who are pregnant or experiencing
pregnancy-related conditions in the same manner and under the same
policies as any other temporary medical condition with respect to any
medical or hospital benefit, service, plan, or policy.
Changes: The Department has redesignated proposed Sec.
106.40(b)(6) as Sec. 106.40(b)(5) in the final regulations, revised
the provision to state that a recipient may not require a certification
from a healthcare provider or any other person unless the certification
satisfies Sec. 106.40(b)(5)(i)-(iii), and made a technical change to
make clear that a recipient's compliance is required.
[[Page 33795]]
D. Discrimination Based on an Employee's Parental, Family, Marital
Status, Pregnancy, or Related Conditions
1. Section 106.51(b)(6) Employment--Granting and Return From Leaves
Comments: Some commenters asserted that proposed Sec. 106.51(b)(6)
was not necessary and should be addressed through sub-regulatory
guidance but did not object to the proposed changes.
Discussion: Changing the language in Sec. 106.51(b)(6) from
``leave for pregnancy, childbirth, false pregnancy, termination of
pregnancy'' to ``leave for pregnancy or related conditions'' is
important to ensure Sec. 106.51 is consistent with the definition of
pregnancy or related conditions in Sec. 106.2 and consistent with like
changes in Sec. Sec. 106.21, 106.40, and 106.57.
Changes: None.
2. Section 106.57 Parental, Family, or Marital Status; Pregnancy or
Related Conditions
Comments: Some commenters opposed Sec. 106.57 generally as
inconsistent with Title IX and case law. Some commenters opposed
proposed Sec. 106.57 because they did not believe Title IX authorizes
the Department to enact regulations governing employment. One commenter
stated that they believed that the Department did not have jurisdiction
over workplace concerns, including sex discrimination and hiring
decisions, which they believed to be solely under the authority of the
EEOC and a recipient's human resources department.
One commenter suggested that, because Title IX protects any
``person,'' the Department should clarify that its protections extend
beyond traditional employees to other workers, such as independent
contractors.
Discussion: The Department disagrees with the assertion that Sec.
106.57 is contrary to case law. Most of the provisions in Sec. 106.57
have been part of the Title IX regulations for nearly half a century.
40 FR 24128 (codified at 45 CFR 86.57 (1975)); 34 CFR 106.57 (current).
The Department was unable to find, and commenters did not provide, any
case law holding that current Sec. 106.57 exceeded the authority
granted by Congress for the Department to issue regulations to
effectuate Title IX's prohibition on sex discrimination in education
programs or activities that receive Federal financial assistance
consistent with achievement of the objectives of the statute. See 20
U.S.C. 1682. To the extent commenters raised similar objections with
regard to specific aspects of Sec. 106.57, those comments are
addressed in the discussion of the applicable subsections below.
In addition, contrary to commenters' assertions, Sec. 106.57 does
not exceed the scope of the Department's congressionally delegated
authority under Title IX. The Supreme Court has recognized that the
Department has broad regulatory authority under Title IX to issue
regulations that it determines will best effectuate the purpose of
Title IX and to require recipients to take administrative actions to
effectuate the nondiscrimination mandate of Title IX. See, e.g.,
Gebser, 524 U.S. at 292; 20 U.S.C. 1682. Title IX provides that ``no
person'' shall be subjected to sex discrimination under any education
program or activity receiving Federal financial assistance, and Title
IX has long been understood to prohibit discrimination against
recipients' employees. See, e.g., N. Haven Bd. of Educ., 456 U.S. at
530. As the Department noted in the July 2022 NPRM, 87 FR 41527,
ensuring equal access to employment in the education sector was a
central purpose of Title IX at the time of its passage. See 118 Cong.
Rec. 5810 (paper by Dr. Bernice Sandler printed in the record with
unanimous consent, explaining that employers in the education sector
often refused to hire women because of concerns about absenteeism due
to family obligations, even though 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'').
Finally, given the wide variety of arrangements and circumstances
across recipients and variations in applicable State employment laws,
recipients are best positioned to determine who is an ``employee.'' The
Department declines to mandate at this time that all independent
contractors be covered by Sec. 106.57 because more information would
be needed before making such a change, particularly given the possible
cost, administrative burden, and interplay with common law principles
and other legal requirements. The Department notes that to the extent a
contractor is an employee of the recipient, the contractor will be
entitled to the protections of Sec. 106.57. In addition, nothing
within the final regulations prohibits a recipient from choosing to
cover independent contractors under Sec. 106.57 if the recipient
believes such protection will further its compliance with these final
regulations.
Changes: None.
3. Section 106.57(a) Parental, Family, or Marital Status
Comments: Some commenters supported the proposed regulations
related to the rights of employees not to be discriminated against
based on sex regarding their parental, family, or marital status. Some
commenters urged the Department to add greater protections for
parenting employees, including reasonable modifications for parenting
employees. Some commenters shared personal stories of recipients asking
women whether their children would interfere with their employment
responsibilities, while men were not asked similar questions.
In contrast, the Department also received feedback that protections
for parenting employees should not be included because, the commenters
argued, parents are not a protected class and being a parent detracts
from a person's ability to perform their employment duties.
Discussion: The Department acknowledges commenters' support of the
regulatory provisions regarding sex discrimination based on employees'
parental, family, and marital status. As explained in the discussion of
Sec. 106.40(a) regarding parenting students and Sec. 106.21 regarding
applicants for admission, the Department declines to require a
recipient to provide reasonable modifications to parenting employees or
applicants for employment at this time. In the future, the Department
could consider whether modifications for parenting employees are
necessary to effectuate the nondiscrimination mandate of Title IX.
However, the Department again notes that a recipient is prohibited from
treating parenting employees or applicants for employment differently
based on sex under Sec. 106.57(a)(1) and from discriminating against
them based on sex stereotypes under Sec. 106.10.
The Department disagrees with the commenters asking to remove Sec.
106.57(a)(1) based on an assertion that parents are not a protected
class, because the prohibition on discrimination against parenting
employees is limited to different treatment based on sex, and sex is a
protected class under Title IX. In addition, sex discrimination in the
treatment of parenting employees has been covered by the Title IX
regulations for nearly 50 years and continues to be necessary to
effectuate Title IX's nondiscrimination mandate. See 40 FR 24128
(codified at 45 CFR 86.57(a) (1975)); 34 CFR 106.57(a) (current).
The Department has, however, decided to make three small changes to
[[Page 33796]]
the text of final Sec. 106.57(a) compared to the proposed regulations.
Upon review, the Department has determined that replacing the word
``apply'' with ``implement'' in Sec. 106.57(a) will improve clarity
consistent with similar revisions in final Sec. Sec. 106.21(c)(2)(i)
and 106.40(a). The Department also has decided to replace the word
``shall'' with the word ``must'' consistent with the other final
regulations but does not intend any decrease in coverage. The
Department has also replaced the word ``Which'' in Sec. 106.57(a)(2)
with the word ``That'' for clarity.
Changes: Section 106.57(a) has been revised to substitute the word
``implement'' for the word ``apply'' and to substitute the word
``must'' for the word ``shall.'' Section 106.57(a)(2) has been revised
to substitute the word ``That'' for the word ``Which.''
4. Section 106.57(b) Pregnancy or Related Conditions
Comments: Some commenters expressed support for the prohibition on
discrimination on the basis of ``pregnancy or related conditions'' in
proposed Sec. 106.57(b), explaining that it is consistent with Title
IX's mandate to prohibit sex discrimination and would improve
employment opportunities for pregnant and parenting teachers and narrow
the wage gap between men and women. Other commenters expressed support
for the language in proposed Sec. 106.57(b) prohibiting discrimination
against employees based on ``current, potential, or past'' pregnancy or
related conditions, adding that such protection will create a more
welcoming environment for pregnant employees because educators
historically have been fired or excluded from the classroom when they
became pregnant, and they continue to face discrimination and barriers
to receiving workplace accommodations for pregnancy-related medical
issues. Some commenters described personal stories of pregnancy-related
discrimination in the workplace and being pushed out of the workplace
due to pregnancy or termination of pregnancy. Some commenters
appreciated the explicit protection for ``potential'' pregnancy,
stating it will protect people who are attempting to get pregnant.
Other commenters asked the Department to change the proposed
regulations to require reasonable modifications for employees based on
pregnancy or related conditions as the proposed regulations would for
students, instead of making accommodations dependent on what is
provided to employees with temporary disabilities. Some commenters
stated that reasonable modifications for employees are particularly
important given the fast-paced nature of the school environment to make
sure employees can work while pregnant and after pregnancy. Some
commenters stated that, like the Department's proposal to require that
recipients provide lactation time and space to employees, clearly
defined rights to reasonable modifications are essential to prevent
different treatment based on sex in the workplace and that, absent
reasonable modifications, employees may have no choice but to leave
their employment. Some commenters stated that matching employees'
rights with students' rights with respect to reasonable modifications
for pregnancy or related conditions would reduce the burden and
complexity of compliance on recipients. These commenters opined that
recipients are already familiar with the ``reasonable accommodation''
framework and structure from its use in the disability context under
Title II of the ADA.
Some commenters observed that many students, particularly at
postsecondary institutions, are also paid employees of the recipient.
Some commenters argued that it would be illogical to, for example,
guarantee a pregnant student access to a stool to rest while studying
in their science lab, but not to provide the same modification to that
student while they perform work as a receptionist for the science
department. These commenters maintained that in both contexts, the
modification is necessary to ensure that the student can fully access
the educational environment.
Discussion: The Department acknowledges the support expressed for
the protections in proposed Sec. 106.57(b) prohibiting discrimination
against employees based on current, potential, or past pregnancy or
related conditions, and agrees that this updated and comprehensive
protection will address barriers to professional achievement and
improve access to career opportunities.
The Department acknowledges commenters' suggestions about providing
the same reasonable modifications to employees that are available to
students. After careful consideration, the Department does not agree
that reasonable modifications for employees are currently necessary to
effectuate Title IX and ensure equal opportunity for recipient
employees. The Department has reached that conclusion for several
reasons.
First, considering recent new Federal legislation in this area,
such as the PUMP Act and the PWFA, and a pending rulemaking that may
address reasonable workplace accommodations for employees affected by
pregnancy, childbirth, or related medical conditions, see 88 FR 54714,
the Department declines to require reasonable modifications for
employees at this time without the opportunity to more fully consider
the interplay between Title IX and other employer obligations. In
addition, many, if not most, of the pregnancy-related barriers
employees face will be addressed by recipients in their compliance with
the non-discrimination protections of Sec. 106.57.
Second, as noted in the discussion of Sec. 106.57(c) below, the
obligation that a recipient treats an employee's pregnancy or related
conditions as it treats other temporary medical conditions is more
robust than the requirement that a recipient treat a student's
pregnancy or related conditions comparably to other students' temporary
medical conditions. Final Sec. 106.40(b)(4) states that a recipient
must treat a student's pregnancy or related conditions in the same
manner and under the same policies as any other temporary medical
condition with respect to any medical or hospital benefit, service,
plan, or policy the recipient administers, operates, offers, or
participates in. However, the language of Sec. 106.57(c) is broader,
stating that a recipient must treat an employee's pregnancy or related
conditions as it does any other temporary medical conditions 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. Accordingly, both
Sec. 106.40(b)(4) and the reasonable modification requirement in Sec.
106.40(b)(3)(ii) are required to effectuate Title IX's
nondiscrimination mandate with respect to pregnant students. But
because Sec. 106.57(c) standing alone is sufficiently broad to
effectuate Title IX's nondiscrimination mandate with respect to
employees who are pregnant or experiencing pregnancy-related
conditions, it is unnecessary to also require recipients to provide
reasonable modifications to pregnant employees without further study.
And the Department disagrees with the suggestion that requiring
reasonable modifications for employees because of pregnancy or related
conditions under all circumstances is less burdensome than requiring
reasonable modifications only to the extent that a recipient
[[Page 33797]]
provides the same modifications for other temporary medical conditions.
With respect to student-employees, the final regulations require
that the recipient provide such students with reasonable modifications
consistent with Sec. 106.40(b)(3)(ii) as necessary to prevent sex
discrimination and ensure equal access to the recipient's education
program or activity. To the extent that a student's individualized,
pregnancy-related needs impact their employment consistent with this
standard, Sec. 106.40(b)(3)(ii) provides the appropriate framework for
a recipient to address such needs--in consultation with the student--in
a manner that is flexible enough to respond to a wide variety of
circumstances and types of employment. The Department agrees with the
commenter that, depending on the circumstances, the provision may
require reasonable modifications in connection with a student's on-
campus employment when such employment is part of, or necessary to
enable, access to the student's education program or activity. For
further explanation of reasonable modifications with respect to
students based on pregnancy or related conditions, see ``Interaction
with Other Federal Laws'' in the discussion of Sec. 106.40(b)(3)(ii).
Nothing in Sec. 106.57 obviates a recipient's separate obligation
to comply with other civil rights laws, including Title VII as amended
by the PDA, Section 504, the ADA, and the PWFA, which has become law
since the issuance of the July 2022 NPRM. See 34 CFR 106.6(a). The PWFA
requires covered employers to make reasonable accommodations for a
worker's known limitations related to pregnancy, childbirth, or related
medical conditions, unless the accommodation will cause the employer an
undue hardship. Moreover, to the extent an employee's related condition
qualifies as a disability, Section 504 or the ADA may apply, which may
require the recipient to provide reasonable accommodations. And nothing
in these regulations precludes a recipient from using its discretion
and flexibility to provide reasonable accommodations to employees for
whom pregnancy or related conditions present barriers to employment.
For the same reasons, the Department also declines to require a
recipient to provide reasonable modifications based on pregnancy or
related conditions for applicants for employment with a recipient.
Finally, the Department has changed the word ``shall'' to ``must''
in Sec. 106.57(b) and revised the phrase ``discriminate against or
exclude from employment'' to remove the words ``or exclude from
employment.'' The Department makes these changes for clarity and
consistency with language in the remainder of the regulations but does
not intend any decrease in coverage. As explained in the July 2022 NPRM
with respect to an identical change to ``exclude'' language in Sec.
106.21(c) pertaining to the treatment of pregnancy in admissions, the
words ``exclude'' and ``excludes'' were used only occasionally in the
current regulations to refer to discrimination and such intermittent
use was confusing. 87 FR 41517. Throughout the final regulations, the
Department interprets ``discriminate'' to encompass exclusion.
Changes: The Department has changed the word ``shall'' to ``must''
and deleted the words ``or exclude from employment'' from Sec.
106.57(b).
5. Section 106.57(c) Comparable Treatment to Other Temporary Medical
Conditions
Comments: Some commenters supported proposed Sec. 106.57(c). One
commenter expressed support for proposed Sec. 106.57(c) but raised
concerns that the regulatory text would imply that a recipient should
treat pregnancy as a temporary disability, which the commenter argued
is inconsistent with disability law and the Department's explanation in
the July 2022 NPRM. Another commenter asked for clarification regarding
the interaction of Sec. 106.57(c), the PDA, Section 504, and the ADA.
Discussion: The Department emphasizes again here, as it explicitly
stated in the July 2022 NPRM, that while some conditions or
complications related to pregnancy might qualify as a disability under
Section 504 or the ADA, pregnancy itself is not a disability. 87 FR
41523. The Department also reemphasizes that if an employee who is
pregnant or experiencing related conditions also has a disability, the
ADA and Section 504 may apply.
As the Department noted in the July 2022 NPRM, there are other
Federal laws in addition to Title IX that may govern a recipient's
responsibilities regarding pregnancy or related conditions in its
workplace, including the ADA, Section 504, the FLSA, and the PDA which
amended Title VII. See 87 FR 41394, 41514-15. In addition, since the
July 2022 NPRM was issued, Congress passed the PWFA, which also
pertains to pregnancy, childbirth, and related medical conditions in
the workplace, and the PUMP Act, which pertains to lactation rights.
The Department clarifies that nothing in Sec. 106.57(c) obviates a
recipient's separate obligation to comply with those other civil rights
laws.
In addition, as noted above in the discussion of Sec. 106.40(b)(4)
with respect to students, the Department notes that the reference to
``pregnancy or related conditions or any temporary disability resulting
therefrom'' contained a redundancy because the term ``pregnancy or
related conditions'' as defined in Sec. 106.2 includes any medical
conditions related to pregnancy, childbirth, termination of pregnancy,
or lactation, and recovery from any of those conditions. To address
these concerns, the Department revised the language in Sec. 106.57(c)
of the final regulations to delete the term ``any temporary disability
resulting therefrom'' and substitute the term ``temporary medical
conditions'' for the remaining references to ``temporary disabilities''
and ``temporary disability.'' The Department's revisions will eliminate
any possible inference that pregnancy standing alone is a disability.
The Department did not, however, change the reference to ``payment of
disability income'' in the list of job-related purposes in Sec.
106.57(c), as that is a specific benefit that may be available to
employees with disabilities. The Department is not aware of anything
called ``medical conditions income,'' so changing that term to
correspond with the changes to ``temporary disability'' and ``temporary
disabilities'' would not make sense.
Changes: In Sec. 106.57(c) of the final regulations, the
Department has removed the phrase ``or any temporary disability
resulting therefrom.'' Additionally, the Department has changed the
other two references to ``temporary disability'' and ``temporary
disabilities'' to ``temporary medical conditions.'' Final Sec.
106.57(c) now states that a recipient must treat pregnancy or related
conditions as any other temporary medical condition for all job-related
purposes. Finally, the section header has been changed from
``Comparable treatment to temporary disabilities or conditions'' to
``Comparable treatment to other temporary medical conditions.''
6. Section 106.57(d) Voluntary Leaves of Absence
Comments: Some commenters supported proposed Sec. 106.57(d)
because it would require recipients to provide leave to employees who
are affected by pregnancy-related medical conditions even if a
recipient does not maintain a leave policy for its employees or if an
employee does not have sufficient leave or accrued employment time to
qualify for leave under the recipient's policy.
[[Page 33798]]
Some commenters asserted that employees should have a right to all
medically necessary time off for pregnancy or related conditions, just
as students do under Sec. 106.40(b)(3)(iv), such as leave to recover
from pregnancy-related health conditions, to attend related medical
appointments, and to accommodate bed rest. Commenters asserted that it
is unclear in proposed Sec. 106.57(d) whether leave for a ``reasonable
period of time'' would include leave for pregnancy-related medical
appointments. Commenters also asked the Department to clarify that to
the extent a recipient maintains a leave policy for employees that is
more generous, the recipient must permit the employee to take leave
under that policy instead. Several commenters maintained that depriving
employees of the same right students have to voluntary leave would
reinforce the stereotype that motherhood and work are incompatible,
contrary to the purpose of Title IX.
Some commenters asked that the Department clarify that a recipient
may not require a doctor's note or other medical documentation for
breaks to attend to basic health needs, such as bathroom breaks. Other
commenters suggested that the Department revise the section title of
proposed Sec. 106.57(d) from ``Pregnancy leave'' to ``Pregnancy and
related conditions leave'' or ``Time off for pregnancy-related needs
and leave'' to make it clear that the leave is available for childbirth
and other medical conditions related to pregnancy.
Discussion: The Department acknowledges commenters' support for
Sec. 106.57(d) and their questions about its implementation. Section
106.57(d) requires a recipient--only if it does not have another leave
policy or an employee does not have enough leave under the policy or
has not worked there long enough to qualify--to treat pregnancy or
related conditions as a justification for an employee's voluntary leave
of absence for a reasonable period of time. After such time, the
employee shall be reinstated to the status held when the leave began or
to a comparable position without a negative effect on any right or
privilege of employment. The pre-existing rule referred to ``pregnancy
or related conditions'' for ``pregnancy, childbirth, false pregnancy,
termination of pregnancy and recovery therefrom,'' but these final
regulations use ``pregnancy or related conditions'' instead; however,
the substance of the provision remains the same.
Still, the Department understands that commenters had questions
about the meaning of ``for a reasonable period of time'' and whether it
is the same as the ``period of time deemed medically necessary''
referenced in Sec. 106.40(b)(3)(iv) regarding voluntary leaves of
absence for students. Determining what is a reasonable period of time
under Sec. 106.57(d) is a fact-specific inquiry that depends on the
totality of the circumstances, including the period of time deemed
medically necessary by an employee's healthcare provider. Considering
recent new Federal legislation in this area, such as the PUMP Act and
the PWFA, and a pending rulemaking that may address reasonable
accommodations for employees who are pregnant or experiencing related
conditions, see 88 FR 54714, the Department declines the commenters'
suggestion to go further and mandate a blanket right to all medically
necessary time off for employees at this time without the opportunity
to more fully consider the interplay between Title IX and other
employer obligations.
In response to commenters' concerns about an employee's ability to
take advantage of a more generous leave policy, the Department further
clarifies that Sec. 106.57(d) only applies if the recipient does not
maintain a leave policy for its employees or the employee has
insufficient leave or accrued employment time to qualify for leave
under the policy. Therefore, if a recipient maintains a leave policy
for employees that is more generous than what is articulated in Sec.
106.57(d), the recipient must permit the employee to take leave under
that policy instead. And under Sec. 106.57(c), a recipient must at
least treat pregnancy or related conditions as it does any other
temporary medical condition with respect to duration and extensions of
leave. For example, if an employee with another temporary medical
condition can take leave for medical appointments related to that
condition, employees who are pregnant or have related conditions must
be permitted to do so as well.
Although the Department declines to add to the final regulations a
provision prohibiting a recipient from requiring a doctor's note or
other medical documentation from employees for breaks to attend to
basic health needs, such as bathroom breaks, the Department reminds
recipients that such documentation may only be required for pregnancy
or related conditions if it is required of all employees with temporary
medical conditions. See Sec. 106.57(c). Therefore, for example, if a
recipient does not require an employee with a urinary tract infection
to provide a doctor's note to take bathroom breaks more frequently than
usual, it must not require such notes from employees who need more
frequent bathroom breaks because of pregnancy or related conditions.
As for the title of the provision, the Department agrees with
commenters that the title ``Pregnancy leave'' did not encompass the
reach of the provision. As explained in the July 2022 NPRM, the
Department proposed adding ``voluntary'' to modify ``leave of absence''
in the text of the provision 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. 87 FR 41527. For
this reason, ``Voluntary leaves of absence'' is a suitable title for
this provision.
Finally, the Department has changed the word ``shall'' to ``must''
in Sec. 106.57(d) for consistency with language in the remainder of
the regulations but does not intend any decrease in coverage.
Changes: The title of Sec. 106.57(d) has been changed from
``Pregnancy leave'' to ``Voluntary leaves of absence,'' and in the text
of the provision, the word ``shall'' has been changed to ``must.''
7. Section 106.57(e) Lactation Time and Space
General Support
Comments: Commenters expressed general support for the requirement
in proposed Sec. 106.57(e) that employees have a clean, private, non-
bathroom lactation space and reasonable break time to express breast
milk or breastfeed. Commenters stated that proposed Sec. 106.57(e)
would provide much-needed support for employees and would advance Title
IX's non-discrimination goals because, they stated, pregnant educators
historically were discriminated against, were fired or excluded from
the classroom, and did not get paid parental leave, causing them to
return to work before they were ready, and they had difficulty finding
time to express breast milk or getting support from their employer to
do so.
Some commenters noted that some educators had to pump in supply
closets or cars while juggling schedules that made it extremely
difficult to express breast milk on a regular basis and that securing
break time is one of the biggest barriers faced by lactating employees
in education. Some commenters noted that if a lactating employee does
not express breast milk as needed, they may experience pain and end up
with health complications including infection, or their milk supply
will reduce, making it harder to continue breastfeeding. Therefore,
commenters explained, a
[[Page 33799]]
lactating employee without adequate time and space to express breast
milk will be forced to choose between their job and their health and
that of their child.
Some commenters reported that thousands of recipients nationwide
already provide their employees with lactation time and space, due to
the ACA, State laws, and the rise in breastfeeding rates, and that
others can learn from their peer institutions, suggesting that
compliance with proposed Sec. 106.57(e) is readily achievable.
Discussion: The Department acknowledges the commenters' variety of
reasons for supporting Sec. 106.57(e). In the final regulations, in
response to comments and upon further review, the Department changed
the language ``[a] recipient must ensure the availability of a
lactation space'' to ``[a] recipient must ensure that an employee can
access a lactation space'' to match the language adopted in final Sec.
106.40(b)(3)(v), the corollary provision regarding student access to
lactation space. As the Department explained above in the student
context, for this provision to be effective a recipient must not only
ensure that an appropriate lactation space is available but also that
it is accessible to the employees who need it.
The Department agrees with commenters that the final regulations,
by requiring access to time and space for lactating employees to
breastfeed or express breast milk, will help recipients to fulfill
Title IX's nondiscrimination goals of addressing sex discrimination in
employment and ensuring that neither pregnancy nor its related
conditions are barriers to equal opportunities in employment by
recipients of Federal financial assistance. The Department also agrees
with commenters that Sec. 106.57(e) will help ensure that recipient
employees do not have to choose between breastfeeding and staying in
their jobs and that they can be productive in the workplace and avoid
serious health complications. Finally, the Department agrees that
compliance with Sec. 106.57(e) should be achievable because so many
recipients nationwide already provide their employees with lactation
time and space, due to the ACA, State laws, and the rise in
breastfeeding rates.
The Department notes that new Federal laws regarding lactation in
the workplace, including the PWFA and the PUMP Act, both of which were
passed after the issuance of the July 2022 NPRM, may also apply to
recipients.
Changes: In final Sec. 106.57(e)(2), the Department has changed
``[a] recipient must ensure the availability of a lactation space'' to
``[a] recipient must ensure that an employee can access a lactation
space.''
Requests for Clarification Regarding Lactation Spaces
Comments: Some commenters expressed support for proposed Sec.
106.57(e)(2)'s requirement that a recipient provide employee access to
lactation space and requested that the Department provide more clarity
by providing specifics such as the recommended location of lactation
spaces, the number of spaces to be provided, whether they should have
evening and weekend access, and how they must be equipped. Some
commenters stated that the minimum requirements for a functional
lactation space include a chair, a flat surface on which to place a
pump, access to an electrical outlet, nearby access to running water, a
refrigerator or other space in which an employee can store expressed
milk, and reasonable proximity to an employee's specific place of work,
and stated that the cost of implementing such requirements would be
minimal because almost all recipients are already required to provide
certain employees with a lactation space under the FLSA (as amended by
the ACA) and a recipient may offer a common space for both students and
employees.
In addition, some commenters asked the Department to state in the
regulations and in supplemental guidance that if multiple students or
employees need simultaneous access to a lactation space, the recipient
should discuss various options with all parties to find a solution that
meets their needs, such as using signage or a scheduling system, or
installing partitions or screens in the space so it can be used by
multiple persons at the same time.
Discussion: The final regulations at Sec. 106.57(e) require
recipients to ensure employees can voluntarily access 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 is the same as what recipients are
required to provide for students under final Sec. 106.40(b)(3)(v).
Whether the lactation space a recipient provides meets the standards of
Sec. 106.57(e)--including that the space ``may be used'' for pumping
and breastfeeding as needed--is best determined on a case-by-case
basis, but generally means that the space is functional, appropriate,
and safe for the employee's use. The Department declines to adopt
additional specific requirements about the size and setup of lactation
spaces for employees at this time to preserve recipient flexibility and
to be able to review the degree of and obstacles to compliance with
other Federal lactation laws.
The Department notes that there may be Federal, State, or local
laws or regulations that contain more specific requirements regarding
lactation spaces for employees, and the Department does not intend for
these regulations to preempt those laws or regulations to the extent
they provide employees with more rights regarding lactation spaces.
Regarding the request that the Department require lactation spaces
to be reasonably close to the employee's specific place of work, the
Department notes again that, in final Sec. 106.57(e)(2), the
Department changed the phrase ``ensure availability of'' to ``ensure
that an employee can access'' a lactation space. This change was made
in recognition of the fact that, for the provision of lactation space
to be effective, a recipient must ensure not only that an appropriate
lactation space is available but also that it is accessible to the
employees who need it in the reasonable break time they must use it. If
the lactation space is so far from an employee's workstation, office,
or classroom that the employee cannot reasonably get there and back,
breastfeed or pump, and store their expressed milk in the time given,
the Department would not consider the space to be accessible to the
employee. This change in text also parallels the revised language
regarding student access to a lactation space in Sec. 106.40(b)(3)(v).
To provide recipients flexibility, the Department also declines to
mandate in the regulations any particular arrangement a recipient must
follow in connection with a shared lactation space. However, the
Department notes that even with multiple users a recipient must comply
with its obligations under Sec. 106.57(e)(2) with respect to each one.
If multiple students or employees need simultaneous access to a
lactation space, a recipient must develop a solution consistent with
Sec. 106.57(e)(2) that meets the needs of the users of the space. Such
a solution might include, as commenters suggested, using signage or a
scheduling system, or installing partitions or screens in the space so
it can be used by multiple persons at the same time. Given the variety
among recipients, the Department defers to a recipient to find a system
that works best at its institution consistent with Sec. 106.57(e)(2),
taking into consideration the needs of its employees and students.
Changes: None.
[[Page 33800]]
Pumping and Breastfeeding
Comments: Some commenters opposed the inclusion of
``breastfeeding'' in this provision because they believed it goes
beyond the obligations that exist currently in some other Federal,
State, and local laws, arguing that this language implies that a
recipient must accommodate the presence of nursing infants in its
school or other recipient workplace, which may not be safe or feasible
in all circumstances. Commenters asserted that a recipient should have
discretion regarding such matters.
In contrast, some commenters urged the Department to explicitly
state in the regulations that a lactating student or employee will
still have the right to express breast milk or breastfeed outside of
the designated lactation spaces, if they wish, consistent with laws in
all 50 States, the District of Columbia, Puerto Rico, and the Virgin
Islands that generally allow breastfeeding in public or private places.
See National Conference of State Legislatures, State Breastfeeding
Laws, https://www.ncsl.org/research/health/breastfeeding-state-laws.aspx (last visited Mar. 12, 2024).
Some commenters requested that the Department revise the language
in Sec. 106.57(e) to use terms such as ``express milk'' and
``nursing'' to be more inclusive of all employees.
Discussion: The Department acknowledges commenters' suggestions and
understands their concerns but disagrees with the suggestion to remove
references to breastfeeding from Sec. 106.57(e). This provision is
focused solely on what may take place in the lactation space that a
recipient must make accessible to its employees, and the Department
wants to be clear that an employee may use that space for breastfeeding
instead of pumping if the employee has access to their child while at
work. The Department is not suggesting that Title IX requires a
recipient to allow nursing infants to be present in the rest of its
school or other workplace. Whether or not an employee's child may be
present in recipient spaces outside the lactation room is a fact-
specific determination beyond the scope of this rulemaking, and the
Department agrees with commenters that a wide variety of State and
local laws may provide such rights and that recipients would be
obligated to honor those rights as applicable. Nothing in these final
regulations would preclude a lactating employee from expressing breast
milk or breastfeeding outside of the recipient's designated lactation
spaces if State and local laws allow it. The decision of where to pump
or breastfeed is at the employee's discretion if it is consistent with
all applicable laws and regulations.
Finally, the Department declines commenters' suggestion to revise
the terminology used in Sec. 106.57(e). Section 106.57(e) requires a
recipient to ensure that any employee who is lactating can access a
lactation space regardless of that employee's gender identity or gender
expression and regardless of whether the employee plans to express milk
via pumping or breastfeeding. Nothing in these final regulations
prohibits a recipient from using different terminology to describe
lactation spaces in its communications with employees.
Changes: None.
Other Requests for Clarification
Comments: One commenter raised a few issues they believed needed
clarification regarding the intersection of proposed Sec. 106.57(e)
with employment-related rights regarding lactation spaces and break
times, such as whether all claims regarding lactation rights now should
be adjudicated under Title IX and whether employers need to add
anything to employee handbooks about this matter. Some commenters
requested that the Department prohibit a recipient from requiring an
employee to get medical certification or documentation to get a
lactation modification.
Discussion: In response to the commenter's question, all claims
regarding lactation rights need not be adjudicated solely under Title
IX. Employees can make a complaint pertaining to lactation under a
recipient's Title IX grievance procedures if they wish. However, there
is no requirement that an individual exhaust remedies under Title IX
before pursuing a claim under another law in court or administratively.
As the Department noted in the July 2022 NPRM, there are other Federal
laws that govern employers' responsibilities regarding pregnancy or
related conditions in the workplace including the PDA, which amended
Title VII, and the ACA, which amended the FLSA. 87 FR 41514-41515. In
addition, since the July 2022 NPRM was issued, Congress passed the PWFA
and the PUMP Act, which also pertain to lactation in the workplace.
There are State and local laws that may apply as well. Not all
recipient employees will be covered by all of these laws, and whether
an employee chooses to pursue a claim under Title IX will depend on the
individual employee's circumstances.
In response to the question about whether a recipient must add
information about lactation to employee handbooks, the Department notes
that the final regulations do not require such notice standing alone;
however, if the recipient provides notice of similar policies or
benefits related to temporary medical conditions, the recipient will be
required under Sec. 106.57(c) to provide comparable notice related to
lactation.
Regarding commenters' requests that the Department prohibit a
recipient from requiring medical documentation for lactation needs, the
Department has added Sec. 106.40(b)(3)(vi) to the final regulations,
which states, among other things, that a recipient may not require a
student to provide supporting documentation related to lactation needs
in connection with the provision of reasonable modifications or access
to lactation space. Just as in the student context, the Department
agrees with commenters that it is not reasonable for an employer to
require documentation regarding employee lactation needs because the
initiation of lactation after childbirth is nearly universal and the
fact of lactation is obvious. However, considering recent new Federal
legislation in this area, such as the PUMP Act and the PWFA, and a
pending rulemaking that may address similar limits on medical
documentation in the employee context, see 88 FR 54714, the Department
declines to adopt similar language in Sec. 106.57 at this time and
believes that considering additional information would be appropriate
before making this change, particularly given the interplay between
Title IX and other employer obligations.
Changes: None.
8. Section 106.60 Pre-Employment Inquiries
Comments: Some commenters opposed proposed Sec. 106.60 because
they believe it exceeds the Department's authority and is inconsistent
with Title IX and case law. Some commenters opposed proposed Sec.
106.60(b) because they objected to the term ``self-identify,'' without
providing additional information as to the reason.
Discussion: The Department disagrees with the assertion that Sec.
106.60 exceeds the Department's authority or is contrary to case law.
The provisions in Sec. 106.60 have been part of the Title IX
regulations since 1975. See 40 FR 24128 (codified at 45 CFR 86.60
(1975)). As discussed above, the Supreme Court has recognized that the
Department has broad regulatory authority under Title IX to issue
regulations that it determines will best effectuate the purpose of
Title
[[Page 33801]]
IX and to require recipients to take administrative actions to
effectuate the nondiscrimination mandate of Title IX. See, e.g.,
Gebser, 524 U.S. at 292. Regulations that ensure that employees are not
discriminated against in the employment application process are
consistent with this grant of authority. See 20 U.S.C. 1682. The
Department was unable to find, and commenters did not provide, any case
law to the contrary in connection with Sec. 106.60.
Although the commenter did not provide sufficient information
regarding the objection to ``self-identify'' for the Department to
understand the commenter's concern, this term will assist both
applicants and recipients by clarifying that recipients may ask
applicants to identify their sex under certain conditions.
In addition, in Sec. 106.60(a), the Department made a grammatical
correction by adding the word ``a'' between the words ``make'' and
``pre-employment inquiry.''
Changes: Section 106.60(a) has been revised to add the word ``a''
before ``pre-employment inquiry.'' In Sec. 106.60(b), the Department
has made a technical change by inserting ``Title IX or'' for clarity
and consistency.
IV. Title IX's Coverage of Sex Discrimination
A. Section 106.10 Scope
1. General
Comments: Some commenters expressed general support for proposed
Sec. 106.10's clarification of the scope of Title IX's prohibition on
sex discrimination on the ground that it would help ensure that all
students can learn and thrive in educational environments free from sex
discrimination. Commenters stated that proposed Sec. 106.10 would
improve students' educational experiences by encouraging recipients to
create inclusive, safe, and supportive learning environments and remedy
discriminatory educational environments that have a negative effect on
student mental health. Commenters asserted that proposed Sec. 106.10
would help schools to better prevent and remedy sex discrimination
against certain populations, including LGBTQI+ students and pregnant
students, who, the commenters asserted, are disproportionately affected
by discrimination. Commenters also shared research that commenters
asserted shows that enumeration of bases of prohibited discrimination
in school policies can reduce rates of bullying and suicidality among
students.
Some commenters viewed proposed Sec. 106.10 as necessary because
LGBTQI+ and pregnant students and individuals lack clear protections in
some schools. Other commenters noted proposed Sec. 106.10 would
alleviate threats, bullying, and harassment that students and employees
experience in some schools. Commenters also asserted that individuals'
right to be free from sex discrimination in education should not depend
on the State in which they live or which school they attend.
Some commenters asserted that proposed Sec. 106.10 conflicts with
Title IX because it includes bases of discrimination that are not
expressly referenced in the statute's text. Other commenters asserted
that express coverage of the bases listed in proposed Sec. 106.10 is
consistent with the broad framing of the statute and court
interpretations of Title IX.
Some commenters urged the Department to define ``sex.'' Some
commenters argued that ``sex'' should be defined in biological terms,
referring to male or female. Some commenters criticized the July 2022
NPRM for asserting that the term ``sex'' is not necessarily limited to
a single component of an individual's anatomy or physiology and
asserting that a definition is not necessary. Those commenters asserted
that this position contradicts the history of the term, and asserted
that ``sex'' is objective, immutable, innate, and biological. One
commenter asserted that sexual orientation, gender identity, and
transgender status are distinct concepts from sex and the word ``sex''
cannot fully encompass all of these terms at once.
Some commenters argued that proposed Sec. 106.10 does not meet the
conditions for rulemaking set out in Executive Order 12866, which
directs Federal agencies to ``promulgate only such regulations as are
required by law, are necessary to interpret the law, or are made
necessary by compelling public need.'' Some commenters said that the
July 2022 NPRM lacked substantial evidence about the prevalence of
discrimination on the basis of sex stereotypes, sex characteristics,
pregnancy or related conditions, sexual orientation, and gender
identity.
One commenter asserted that covering discrimination based on gender
identity, sexual orientation, sex stereotypes, and sex characteristics
would violate the Protection of Pupil Rights Amendment (PPRA), 20
U.S.C. 1232h. The commenter argued that recipients would have to ask a
student about sex behavior or attitudes and religious practices to
comply with the regulations.
Some commenters urged the Department to clarify or modify proposed
Sec. 106.10 to add examples of discrimination, including sex-based
harassment, sexual violence and exploitation, and preventing a student
from participating in an education program or activity consistent with
their gender identity. Other commenters supported adding other terms to
proposed Sec. 106.10, including biological sex, gender norms, gender
expression, intersex traits, and marital status. Some commenters urged
the Department to clarify in Sec. 106.10 that discrimination based on
gender expression would be prohibited discrimination based on gender
identity and sex stereotyping. Commenters also urged the Department to
clarify that pay inequity based on sex is a form of sex discrimination;
explicitly prohibit discrimination on the basis of ``actual or
perceived'' protected classes; and clarify the application of proposed
Sec. 106.10 to digital or online harassment.
Some commenters expressed concern that proposed Sec. 106.10 is
vague and would make it difficult for recipients and the public to
discern what constitutes sex discrimination (e.g., one commenter
objected to the Department's assertion that the bases listed in
proposed Sec. 106.10 are not exhaustive, arguing that this would
deprive a school community of notice of what constitutes
discrimination). Some commenters expressed concern that proposed Sec.
106.10 could be arbitrarily or selectively enforced in the absence of
clear, objective definitions of the terms used in the regulations (such
as sex stereotypes, sexual orientation, gender identity, and sex). Some
commenters expressed concern that terms used in the preamble are not
defined (e.g., transgender, intersex). Some commenters raised concerns
about the term ``LGBTQI+,'' including that the identities represented
by the acronym should not be conflated and that it may not encompass
the full range of identities that individuals might have.
One commenter urged the Department to reopen the comment period to
consider the impact of the pending Supreme Court decision in 303
Creative LLC v. Elenis, No. 21-476.
Discussion: The Department agrees with commenters that Sec. 106.10
will promote nondiscriminatory educational environments by clarifying
the scope of Title IX's prohibition on sex discrimination and expects
that Sec. 106.10 will facilitate a consistent understanding of Title
IX across the country.
The Department disagrees with commenters who argued that bases
[[Page 33802]]
specified in Sec. 106.10 conflict with Title IX. As explained in the
July 2022 NPRM, Title IX does not use the term ``on the basis of sex''
in a restrictive way, 87 FR 41531-32, and, as other commenters noted,
many Federal courts have broadly interpreted the scope of prohibitions
on sex discrimination in Title IX and other laws to cover the bases
identified in Sec. 106.10. See, e.g., Bostock, 590 U.S. at 659-62
(sexual orientation and gender identity); Grabowski, 69 F.4th at 1113
(sexual orientation); Grimm, 972 F.3d at 618-19 (sex characteristics
and gender identity); Whitaker By Whitaker v. Kenosha Unified Sch.
Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1049-50 (7th Cir. 2017)
(gender identity), abrogated on other grounds as recognized by Ill.
Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020); Price
Waterhouse, 490 U.S. at 251 (sex stereotypes); Nevada Dep't of Hum.
Res. v. Hibbs, 538 U.S. 721, 736 (2003) (pregnancy). The text of Title
IX unambiguously covers any sex discrimination, except to the extent
excluded in certain statutory provisions, and the exceptions in the
statute must be construed strictly. See, e.g., Jackson, 544 U.S. at 175
(``Title IX is a broadly written general prohibition on discrimination,
followed by specific, narrow exceptions to that broad prohibition.'');
Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980) (``Where
Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the
absence of evidence of a contrary legislative intent.'').
As the Department explained in the July 2022 NPRM, providing a
specific definition of ``sex'' for purposes of Sec. 106.10 is
unnecessary for these regulations. 87 FR 41531. As explained in more
detail below in the discussions of each basis in Sec. 106.10,
discrimination on each of those bases is sex discrimination because
each necessarily involves consideration of a person's sex, even if that
term is understood to mean only physiological or ``biological
distinctions between male and female,'' as the Supreme Court assumed in
Bostock. 590 U.S. at 655. The Department described each of these bases,
and the justification for including each, in the July 2022 NPRM, and
they are addressed in more detail below. 87 FR 41531-34. The Department
believes it is important to clarify that Title IX's prohibition on sex
discrimination includes discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity.
Relatedly, the Department has determined it is not necessary to
define each of the bases of discrimination listed in Sec. 106.10 or
other related terms used in the preamble. The Department has defined
key terms as necessary in Sec. 106.2. The Department disagrees that
the terms in Sec. 106.10 and the related terms in the preamble are
vague. Rather, as explained in more detail below, they are well
understood, informed by case law, and used widely in other laws and
policies. To the extent that recipients want to further clarify the
scope of discrimination under Title IX and these regulations, nothing
in the final regulations prevents a recipient from adopting policies
that include examples of prohibited conduct or providing training to
its community on the scope of Title IX's coverage.
The Department disagrees that Sec. 106.10 fails to comply with
Executive Order 12866. The persistence of discrimination on the basis
of sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity each present a
compelling public need, and this need is bolstered by commenters who
discussed the prevalence of such discrimination. Section 106.10 will
help ensure recipients, students, and other members of the public
understand how the Department interprets the scope of Title IX's
prohibition on sex discrimination. As described above, commenters
provided many examples of discrimination on the bases in Sec. 106.10
and the ways such discrimination impedes access to education, which is
reinforced by OCR's enforcement experience.
The Department disagrees that prohibitions on discrimination based
on gender identity, sexual orientation, sex stereotypes, and sex
characteristics in these final regulations violate the PPRA. The PPRA
requires parental consent (unless the student has turned 18 or is an
emancipated minor) before an LEA may require, as part of an applicable
program (or a program that the Department/Secretary of Education
administers), a student to ``submit to a survey, analysis, or
evaluation that reveals information concerning'' certain issues,
including ``sex behavior or attitudes'' and ``religious practices,
affiliations, or beliefs of the student or student's parent.'' 20
U.S.C. 1232h(b)(3) and (7). The PPRA also requires an LEA to develop
and adopt policies, in consultation with parents, to provide
arrangements to protect privacy in the event of the administration or
distribution of a survey to a student containing such items, including
direct notification to parents (or to a student if a student has turned
18 or is an emancipated minor) of the specific or approximate dates
during the school year of the administration of such a survey and the
opportunity to opt their children out of such a survey. 20 U.S.C.
1232h(c)(1)(B), (2)(B), (2)(C)(ii). Neither Sec. 106.10 nor any other
part of the final regulations requires a recipient to mandate that
students disclose information about their sex behavior or attitudes or
their or their parents' religious practices, affiliations, or beliefs
or requires that an LEA administer surveys to students that contains
questions on these topics. Further, Sec. 106.6(g) reinforces any legal
right of a parent or guardian to act on behalf of their child. The
Department is committed to complying with the PPRA and expects LEAs to
do the same.
The Department appreciates commenters' interest in ensuring that
Sec. 106.10 is sufficiently clear to adequately notify school
communities of what constitutes unlawful discrimination. The Department
disagrees that the structure of Sec. 106.10 is impermissibly vague as
it is common for laws, regulations, and policies to specify the bases
of discrimination that are prohibited. Section 106.6(d) makes clear
that nothing in the Title IX regulations requires a recipient to
restrict rights guaranteed by the U.S. Constitution, such as by
restricting constitutionally protected speech, and no other provision
authorizes such actions. The Department maintains that the final
regulations provide adequate notice of the scope of a recipient's legal
obligations without purporting to specify outcomes for all scenarios
and situations, many of which will turn on particular facts and
circumstances. Other sections of the regulations address specific
requirements and prohibitions.
The Department disagrees with commenters' suggestion to add
specific forms of discrimination to Sec. 106.10. The Department
appreciates the opportunity to clarify that Sec. 106.10 describes
bases of discrimination that involve consideration of sex. Sex-based
harassment and sexual violence, on the other hand, are examples of
discriminatory conduct; they are not themselves ``bases'' of
discrimination. These two concepts--the basis of the discrimination and
the form that discrimination takes--are distinct and should remain
separate in the final regulations. This distinction is reflected in the
definition of ``sex-based harassment'' in Sec. 106.2, which states
that harassment on the basis of sex is a ``form'' of sex
discrimination, and includes harassment on the ``bases'' listed in
Sec. 106.10. The Department
[[Page 33803]]
therefore also disagrees with commenters' suggestions to modify Sec.
106.10 to address issues like pay inequity, various forms of sex-based
harassment, or treating a person inconsistent with their gender
identity, because those are not themselves ``bases'' that involve
consideration of sex, but rather, are examples of ways that sex
discrimination may occur.
The Department declines to add marital status to Sec. 106.10
because Title IX does not prohibit discrimination based on marital
status per se, as discrimination based on marital status does not
necessarily require consideration of a person's sex. Title IX does,
however, prohibit a recipient from applying rules concerning marital
status that treat individuals differently on the basis of sex (e.g.,
treating married women more or less favorably than married men,
treating an unmarried mother worse than a married mother based on sex
stereotypes, treating a man who is married to a man worse than a woman
who is married to a man). See 34 CFR 106.21(c), 106.37(a)(3),
106.40(a), 106.57(a), 106.60.
While the Department appreciates commenters' suggestions for
including additional overlapping bases in Sec. 106.10, the Department
declines those suggestions as unnecessary. For example, as discussed in
the July 2022 NPRM and below, the Department interprets ``sex
characteristics'' to include ``intersex traits,'' and therefore
declines to add the latter term into the regulatory text. 87 FR 41532.
Similarly, the Department does not find it necessary to add commenters'
suggested bases such as ``gender norms'' and ``gender expression,'' as
each of these is rooted in one or more of the bases already represented
in Sec. 106.10 and does not need to be set out separately.
The Department agrees that Sec. 106.10 extends to discrimination
based on a perceived status, whether the perception is accurate or not,
but this conclusion is already apparent from the text of the statute
and relevant case law. Courts have recognized that discrimination based
on perceived characteristics violates Title VII. See Abercrombie &
Fitch Stores, 575 U.S. at 773-74 (holding that to prove religious
discrimination under Title VII a plaintiff need not show that the
employer had actual knowledge that the plaintiff needed a religious
accommodation as long as the plaintiff could show that the perceived
need for an accommodation was a motivating factor in the employer's
adverse decision); Roberts v. Glenn Indus. Group, Inc., 998 F.3d 111,
120-21 (4th Cir. 2021) (holding that discrimination based on perceived
sexual orientation violates Title VII's prohibition on sex
discrimination); Jones v. UPS Ground Freight, 683 F.3d 1283, 1299, 1304
(11th Cir. 2012) (holding that plaintiff who alleged race
discrimination based, in part, on the use of epithets associated with
ethnic or racial groups that differed from the plaintiff's actual
ethnicity or race could survive a motion for summary judgment); EEOC v.
WC&M Enters., Inc., 496 F.3d 393, 401 (5th Cir. 2007) (quoting EEOC
guidelines that state Title VII does not require a showing ``that the
alleged discriminator knew the particular national origin group to
which the complainant belonged [because] it is enough to show that the
complainant was treated differently because of [their] foreign accent,
appearance, or physical characteristics''). And the Supreme Court and
lower Federal courts often rely on interpretations of Title VII to
inform interpretations of Title IX, rendering it appropriate to do so
here. See, e.g., Franklin, 503 U.S. at 75; Jennings, 482 F.3d at 695;
Frazier, 276 F.3d at 65-66; Gossett, 245 F.3d at 1176. Further, at
least one circuit court of appeals has held that Title IX similarly
bars sex discrimination on the basis of perceived sex. See Grabowski,
69 F.4th at 1113, 1116-18 (holding that Title IX bars sexual harassment
on the basis of perceived sexual orientation) (citing Bostock, 590 U.S.
644; Price Waterhouse, 490 U.S. 228). In Grabowski, the Ninth Circuit
noted that the harassment at issue stemmed from the perception that a
male student was attracted to men, was motivated by the impermissible
sex stereotype that men should be attracted only to women, and thus may
not have occurred if the student was a different sex. See id. at 1116;
id. at 1117 (citing Price Waterhouse, 490 U.S. at 250; Nichols v.
Azteca Restaurant Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001)).
Accordingly, as noted in the July 2022 NPRM, Title IX's broad
prohibition on discrimination ``on the basis of sex'' includes, at a
minimum, discrimination against an individual on the basis of their
perceived sex, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity. 87 FR 41532. The inclusion of
sex stereotypes in Sec. 106.10 further underscores the point that
Title IX covers discrimination based on one person's perception of
another, whether or not those perceptions are accurate.
The Department disagrees that noting the bases listed in Sec.
106.10 are not exhaustive deprives recipients of notice of what
constitutes sex discrimination. The Department proposed adding the
bases in Sec. 106.10 as examples to clarify the scope of Title IX's
coverage of sex discrimination, which includes any discrimination that
depends in part on consideration of a person's sex. The bases listed in
Sec. 106.10 are intended to provide recipients notice of the broad
scope of prohibited sex discrimination.
This preamble and the preamble to the July 2022 NPRM use terms such
as ``LGBTQI+,'' ``transgender,'' and ``intersex,'' for purposes of
convenience and explanation, but they do not appear in, and therefore
need not be defined for purposes of applying, the final regulations
because no rights and obligations under the final regulations depend on
use of those terms. For example, the Department uses the term
``LGBTQI+'' as shorthand to describe ``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.'' 87 FR 41395. The
Department understands the term ``transgender'' to refer to a person
whose sex assigned at birth differs from their gender identity. The
Department explained in the July 2022 NPRM that 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.'' 87 FR 41532.
The Department declines the commenter's suggestion to reopen the
comment period to consider the impact of 303 Creative LLC v. Elenis,
600 U.S. 570 (2023), because the decision did not address the education
context and would not change the final regulations, which already
specify that nothing in these regulations requires a recipient to
restrict rights protected under the First Amendment.
Changes: None.
2. Authority To Enact Regulations on Sexual Orientation and Gender
Identity Discrimination
Comments: Some commenters supported Sec. 106.10, noting that Title
IX provides express statutory authority for the Department to enact
regulations that are ``consistent with the achievement of the
objectives'' of Title IX. 20 U.S.C. 1682. Some commenters supported
Sec. 106.10 because it is consistent with the Supreme Court's
description of Title IX in North Haven Board of Education, 456 U.S. at
521. Similarly, some commenters said proposed Sec. 106.10
[[Page 33804]]
would be consistent with prior and current Department guidance and
enforcement; Executive Orders 13803, 13985, 13988, 14021, and 14075;
Title VII case law, including Price Waterhouse, Oncale, and Bostock;
and Federal court decisions recognizing that Title IX's prohibition on
sex discrimination includes discrimination based on sexual orientation
and gender identity.
Other commenters asserted that Title IX's legislative history lacks
reference to sexual orientation and gender identity and expressed
concern that coverage of these bases of discrimination in proposed
Sec. 106.10 would be at odds with Title IX's original purpose, which
commenters argued was to protect the interests of women and girls.\87\
Commenters also asserted that Sec. 106.10 reflects an unexplained
departure from the Department's historical interpretation of Title IX
and exceeds the Department's authority under Title IX.
---------------------------------------------------------------------------
\87\ One commenter argued that even though Bostock held that in
1964 Congress intended to cover sexual orientation and gender
identity discrimination under Title VII, Congress's intent in
passing Title IX must reflect Congress's understanding of sex
discrimination in 1972, which the commenter asserted would not cover
discrimination based on sexual orientation or gender identity.
---------------------------------------------------------------------------
Commenters argued that ``sex'' should be interpreted according to
the ordinary public meaning of the term when Title IX was enacted, that
``sex'' was understood by contemporary dictionaries and courts to refer
to physiological differences between males and females, that the use of
the term ``gender identity'' was very limited at that time, and that
the term ``gender'' has been used in contradistinction to ``sex.'' Some
commenters said that Title IX's references to ``both sexes,'' 20 U.S.C.
1681(a)(2), and ``one sex'' and ``the other sex,'' 20 U.S.C.
1681(a)(8), are at odds with coverage of sexual orientation and gender
identity discrimination.
Commenters also cited examples in which courts and the Department
have declined to interpret sex discrimination laws to include sexual
orientation and gender identity discrimination.
Some commenters expressed concern that proposed Sec. 106.10 would
circumvent Congress, which has declined to pass bills that would
clarify that Title IX's coverage of sex discrimination encompasses
gender identity discrimination. H.R. 1652, 113th Cong. (2013); S. 439,
114th Cong. (2015).
Some commenters asserted that Title IX's contractual nature demands
a narrow reading of the law and that Sec. 106.10 exceeds Congress's
power to impose funding conditions under the Constitution's Spending
Clause. The commenters said that recipients could reasonably have read
Title IX as ambiguous as to whether it covered sexual orientation and
gender identity discrimination when they accepted funds, that the
Department may not impose post-acceptance or retroactive conditions on
Federal funds, and that private recipients of Federal funds must have
notice of their responsibilities.
Some commenters asserted that the Department's interpretation of
Title IX to cover sexual orientation and gender identity discrimination
readjusts the balance between State and Federal authority, implicating
the Tenth Amendment, sets up potential conflicts with State laws,
weakens local control of education, and undermines the Department's
compliance with the Department of Education Organization Act, 20 U.S.C.
3403(b). Other commenters, in contrast, supported the inclusion of
sexual orientation and gender identity in proposed Sec. 106.10, in
part because it would be consistent with other anti-discrimination laws
and the anti-discrimination policies already in place at some
recipients.
Some commenters also objected to the July 2022 NPRM's citation to
OCR's 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) (Bostock
NOI), https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf. Commenters said the Department cannot rely on the Bostock
NOI as authority for Sec. 106.10 because the U.S. District Court for
the Eastern District of Tennessee preliminarily enjoined the Department
from enforcing it against twenty States. See Tennessee v. U.S. Dep't of
Educ., 615 F. Supp. 3d 807, 842 (E.D. Tenn. 2022).
Some commenters objected to the Department's reliance on Executive
Orders 13988 and 14021.
Discussion: The Department agrees with commenters that, as
explained in more detail below, Sec. 106.10 is consistent with the
Department's statutory authority under Title IX, prior and current
Department guidance, various Executive Orders, and Federal case law
precedents. The Department's authority to issue regulations governing
equal opportunity to participate in an education program or activity is
well established. 20 U.S.C. 1682; 20 U.S.C. 1221e-3; 20 U.S.C. 3474;
Education Amendments of 1974 section 844.
The Department disagrees with commenters who argued that coverage
of sexual orientation and gender identity discrimination is at odds
with the purpose of Title IX. The purpose of Title IX, as shown from
its text and structure, is to broadly prohibit sex discrimination. It
has appropriately been applied in contexts that are covered by that
broad prohibition, even if Congress did not specify those contexts when
the law was passed. The Supreme Court has long recognized that
statutory prohibitions on sex discrimination encompass sexual
harassment, Davis, 526 U.S. at 647-48 (Title IX); Gebser, 524 U.S. at
281 (Title IX); Harris, 510 U.S. at 21 (Title VII); Franklin, 503 U.S.
at 74-75 (Title IX); Meritor Sav. Bank, 477 U.S. at 64 (Title VII);
retaliation, Jackson, 544 U.S. at 173-74 (Title IX); discrimination
against men, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S.
669, 682 (1983) (Title VII); and same-sex sexual harassment, Oncale,
523 U.S. at 79 (Title VII); Frazier, 276 F.3d at 66 (``Oncale is fully
transferable to Title IX cases''). Justice Scalia, writing for a
unanimous Supreme Court, recognized that same[hyphen]sex sexual
harassment constitutes sex discrimination under Title VII because
``statutory prohibitions often go beyond the principal evil to cover
reasonably comparable evils, and it is ultimately the provisions of our
laws rather than the principal concerns of our legislators by which we
are governed.'' Oncale, 523 U.S. at 79; cf. Bostock, 590 U.S. at 680-81
(rejecting employers' request that the Court base its decision on what
the Court thinks is best instead of interpreting the underlying
statute). The authority to address sexual orientation discrimination
and gender identity discrimination as sex discrimination under Title
IX, including supportive and contrary case law, is addressed in more
detail in the separate discussion of those bases below.
The Department disagrees with commenters who asserted that the
statute's use of the terms ``both sexes,'' ``one sex,'' and ``the other
sex'' suggests that the statute does not cover sexual orientation and
gender identity discrimination. As explained in the July 2022 NPRM,
Title IX's coverage of discrimination based on sexual orientation and
gender identity does not depend on whether sex is defined to encompass
only certain biological characteristics. 87 FR 41531-32. Indeed,
Bostock's reasoning dictates that, even assuming that ``sex'' refers to
``biological distinctions between male and female,'' discrimination
against a person because
[[Page 33805]]
they are gay or transgender is, in part, discrimination on the basis of
sex. See Bostock, 590 U.S. at 659-62. The Department recognizes that
some early Federal court decisions did not recognize sexual orientation
and gender identity discrimination as sex discrimination, but many
subsequent Federal court decisions have declined to extend those
earlier decisions.\88\ Some of these subsequent decisions cited
intervening decisions of the U.S. Supreme Court, including Bostock,
which recognized that Title VII's prohibition on sex discrimination
encompasses sexual orientation and gender identity discrimination, and
Price Waterhouse, 490 U.S. at 251, which recognized that Title VII's
prohibition on sex discrimination encompasses discrimination based on a
failure to conform to stereotypical gender norms.
---------------------------------------------------------------------------
\88\ See, e.g., Ulane v. Eastern Airlines, 742 F.2d 1081, 1085-
87 (7th Cir. 1984), not followed as dicta by Hively v. Ivy Tech
Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017); Sommers v.
Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982); Holloway v.
Arthur Andersen & Co., 566 F.2d 659, 664 (9th Cir. 1977), overruling
recognized by Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir.
2000).
---------------------------------------------------------------------------
Federal courts' more recent analyses of Title IX's coverage of
sexual orientation and gender identity discrimination are more
persuasive because they apply Bostock and Price Waterhouse and
acknowledge the full scope of Title IX's prohibition on sex
discrimination. See, e.g., Grabowski, 69 F.4th at 1113 (Title IX
prohibits sexual orientation discrimination); Grimm, 972 F.3d at 616
(Title IX prohibits gender identity discrimination); Whitaker, 858 F.3d
at 1049 (same); cf. Adams v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791,
808-09 (11th Cir. 2022) (recognizing that Bostock held that
discrimination because a person is gay or transgender ``necessarily
entails discrimination based on sex,'' but opining that this holding
did not resolve the question of whether a school board's policy
excluding transgender students from bathrooms consistent with their
gender identity was otherwise permissible under Title IX).
Although Congress has not amended Title IX to clarify its
application to sexual orientation and gender identity discrimination,
the Department agrees with the Supreme Court that ``congressional
inaction lacks persuasive significance because several equally tenable
inferences may be drawn from such inaction, including the inference
that the existing legislation already incorporated the offered
change.'' LTV Corp., 496 U.S. at 650 (citations and quotations
omitted). The Department's interpretation of Title IX flows from the
statute's ``plain terms,'' see Bostock, 590 U.S. at 662-63, 674-76, and
is consistent with the recent analysis of the statute's text and
structure by various Federal courts, see Grabowski, 69 F.4th at 1113;
Grimm, 972 F.3d at 616.
The Department disagrees with commenters who argued that Title IX's
contractual nature demands a narrow reading of the law or that Sec.
106.10 constitutes an unfair surprise or retroactive condition. While
Title IX is in the nature of a contract, under Congress's Spending
Clause authority, recipients have been on notice since enactment of
Title IX that the statute means that no recipient may discriminate on
the basis of sex. See Jackson, 544 U.S. at 175 (``Because Congress did
not list any specific discriminatory practices when it wrote Title IX,
its failure to mention one such practice does not tell us anything
about whether it intended that practice to be covered.''); see also
Bennett, 470 U.S. at 665-66, 673 (noting that ``the possibility that
application of [the condition] might be unclear in [some] contexts''
does not render it unenforceable under the Spending Clause); Sch. Bd.
of Nassau Cnty. v. Arline, 480 U.S. 273, 184, 286 n.15 (1987) (holding
that individuals with contagious diseases are covered by Section 504
and rejecting lack of notice objections given Spending Clause statute's
broad nondiscrimination mandate); Grimm, 972 F.3d at 619 n.18.
Moreover, the notice required for the Spending Clause is satisfied by
the text itself; just as the Supreme Court held in Bostock regarding
Title VII, it is clear from the statutory text that, by its plain
terms, Title IX covers discrimination that, like sexual orientation and
gender identity discrimination is based on ``sex.'' Cf. Bostock, 590
U.S. at 662-63 (holding Title VII's prohibition on discrimination on
the basis of sexual orientation or gender identity flows from the
statute ``plain terms''). Further, this rulemaking process has afforded
recipients notice and opportunity to comment, and recipients that do
not wish to comply with the requirements of the final regulations have
had and continue to have the opportunity to decline Federal funding.
Further, the Department will not--and does not have the authority to--
enforce these final regulations retroactively; they apply only to sex
discrimination that allegedly occurred on or after August 1, 2024.
Consistent with Title IX, the final regulations provide for an
appropriate balance between State and Federal authority. By statute,
Congress has conferred authority on the Department to promulgate
regulations under Title IX to effectuate the purposes of Title IX. 20
U.S.C. 1682. Compliance with Title IX and its implementing regulations
is ``much in the nature of a contract,'' because, ``in return for
federal funds, the States agree to comply with federally imposed
conditions.'' Pennhurst, 451 U.S. at 17. Consistent with its position
with respect to the 2020 amendments, the Department maintains that,
through these final regulations, it is not compelling recipients to do
anything. Recipients--including States and educational institutions--
agree to comply with Title IX and its implementing regulations as part
of the bargain for receiving Federal financial assistance, so that
Federal funds are not used to support sex discrimination. See 85 FR
30459. States retain the ability to further address discrimination on
the basis of sex in education in a manner that complies with these
final regulations.
Accordingly, the Department disagrees that it lacks the delegated
authority to promulgate Sec. 106.10. In enacting Title IX, Congress
conferred the power to promulgate regulations on the Department. 20
U.S.C. 1682. The Supreme Court has noted that ``[t]he express statutory
means of enforc[ing] [Title IX] is administrative,'' as ``th[at]
statute directs federal agencies that distribute education funding to
establish requirements to effectuate the nondiscrimination mandate, and
permits the agencies to enforce those requirements through `any . . .
means authorized by law' including ultimately the termination of
federal funding.'' Gebser, 524 U.S. at 280-81 (quoting 20 U.S.C. 1682).
The Supreme Court has held that sex discrimination, as prohibited by
Title VII, encompasses discrimination based on sexual orientation and
gender identity, Bostock, 590 U.S. at 659-62, and lower courts have
applied this reasoning to Title IX, see, e.g., Grabowski, 69 F.4th at
1116; Grimm, 972 F.3d at 616. Section 106.10's coverage of
discrimination on the basis of sexual orientation and gender identity
is consistent with these Federal court holdings and is properly
promulgated to effectuate the purposes of Title IX's nondiscrimination
mandate.
Additionally, with respect to concerns that coverage of sexual
orientation and gender identity discrimination under Sec. 106.10 will
lead to conflicts with State laws, the Department notes that the
obligation to comply with Title IX and these final regulations is not
obviated or alleviated by any State or local law or other requirements
that conflict with Title IX and these final regulations. As
[[Page 33806]]
addressed in more detail in the discussion of Sec. 106.6(b), it is
well established that State laws can be preempted by Federal statutes
and regulations when it is impossible for a private party to comply
with both State and Federal requirements or because State law stands as
an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress. See Freightliner Corp., 514 U.S. at 287;
Hillsborough Cnty., 471 U.S. at 713; Planned Parenthood of Hous., 403
F.3d 324; O'Brien, 162 F.3d 40. As long as State laws do not conflict
with Title IX and these final regulations, recipients should be able to
comply with State laws as well as these final regulations.
Relatedly, the Department disagrees that Title IX's coverage of
sexual orientation and gender identity discrimination inappropriately
infringes on the responsibility of State and local governments to
provide public education or prevents States from customizing policies
for their local communities. Nothing in these regulations prevents
States or local governments from adopting innovative and customized
approaches to education, as long as they are consistent with Title IX's
prohibition on sex discrimination. And Title IX does not dictate
curriculum. See 34 CFR 106.42 (``Nothing in [theseTitle IX
regulations]shall be interpreted as requiring or prohibiting or
abridging in any way the use of particular textbooks or curricular
materials.''). The Department declines to highlight examples of
existing State laws and policies that directly conflict with Title IX
because the Department refrains from offering opinions about specific
laws or policies without an evaluation of all of the relevant facts.
The Department also disagrees with commenters who stated that the
final regulations exceed the Department's authority under the
Department of Education Organization Act; the final regulations do not
grant the Department authority to direct, supervise, or control the
administration or personnel of any recipient. 20 U.S.C. 3403(b).
The Department acknowledges that a district court entered a
preliminary injunction barring the Department from enforcing its
Bostock NOI against twenty States because the court concluded that the
plaintiffs were likely to succeed on their claim that the Bostock NOI
and other accompanying documents were required to go through notice-
and-comment rulemaking. Tennessee, 615 F. Supp. 3d at 840. The
Department disagrees with the conclusion and is appealing that ruling.
But the district court's holding has no bearing on the Department's
statutory authority to promulgate and amend its Title IX regulations as
failure to employ notice-and-comment rulemaking was the ground upon
which the Tennessee court enjoined that notice. The Department
disagrees that the cases commenters cited prevent the Department from
regulating on Title IX's application to sexual orientation or gender
identity discrimination. Mann Construction, Inc. v. United States, 27
F.4th 1138 (6th Cir. 2022), for example, does not involve Title IX and
examines notice-and-comment rulemaking requirements. Here, however, the
Department has complied with all applicable APA requirements for this
rulemaking, and thus, Mann does not apply.
The Department also clarifies that it did not rely on Executive
Orders 13988 or 14021 for its interpretation of Title IX. Rather, these
orders directed the Department to review its current regulations
implementing Title IX for consistency with Title IX's statutory
prohibition on sex discrimination. The Department's statutory authority
for Sec. 106.10 comes from Title IX, 20 U.S.C. 1682, and other
statutes, 20 U.S.C. 1221e-3 and 3474.
Changes: None.
3. Reliance on Bostock and Title VII Case Law
Comments: Some commenters noted that Federal courts have found that
discrimination on the basis of sexual orientation and gender identity
is sex discrimination under Title VII, Title IX, and other laws, and
noted that courts have historically equated the meaning of sex
discrimination under Title IX with Title VII and looked to Title VII to
interpret Title IX.
Other commenters objected to the Department's reliance on Title VII
case law because of differences between Title IX and Title VII,
including that Title IX expressly permits separation or different
treatment of students based on sex in certain contexts and because
education and employment are different in analytically material ways;
that Title IX has a contractual framework whereas Title VII is framed
as an outright prohibition; that Title IX is ``sex-affirmative'' and
expressly permits some sex-based distinctions whereas Title VII is
``sex-prohibitive;'' and that the text of Title VII's prohibition on
discrimination ``because of sex'' and Title IX's prohibition on
discrimination ``on the basis of sex'' are sufficiently different that
the reasoning of Bostock should not apply to the latter.
Some commenters objected to the Department's reliance on Bostock
for explicitly including sexual orientation and gender identity
discrimination under Title IX, arguing that the Supreme Court assumed
that ``sex'' referred to ``biological distinctions between male and
female,'' 590 U.S. at 655, framed the issue before it narrowly, and
stated that the decision did not apply to other Federal laws that
prohibit sex discrimination, id. at 681. Some commenters asserted that
discrimination against a person for being ``nonbinary'' or ``bisexual''
may not require consideration of sex in the same way the Bostock Court
analyzed discrimination because a person is gay or transgender.
Some commenters argued that the Department did not provide a
persuasive explanation for its change from the position taken in a
memorandum from its General Counsel's office commenting on Bostock's
application to Title IX. U.S. Dep't of Educ., 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 in
March 2021) (Rubinstein Memorandum), https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf. Some
commenters urged that the final regulations should not extend beyond
the boundaries of the Rubinstein Memorandum, which they argued is
consistent with Bostock and better protects cisgender women and girls
from discrimination.
Discussion: Some courts have declined to extend the Supreme Court's
reasoning in Bostock to Title IX by concluding that prohibitions on
discrimination ``because of sex'' and discrimination ``on the basis''
of sex do not mean the same thing. See, e.g., Neese v. Becerra, 640 F.
Supp. 3d 668, 675-84 (N.D. Tex. 2022). The Department disagrees. Both
phrases simply refer to discrimination motivated in some way by sex.
Indeed, the Supreme Court has used the terms ``because of'' and ``on
the basis of'' interchangeably, including in Bostock itself. Bostock,
590 U.S. at 650 (``[I]n Title VII, Congress outlawed discrimination in
the workplace on the basis of race, color, religion, sex, or national
origin.''); see also Meritor Sav. Bank, 477 U.S. at 64 (``[W]hen a
supervisor sexually harasses a subordinate because of the subordinate's
sex, that supervisor `discriminate[s]' on
[[Page 33807]]
the basis of sex.''). And like Title VII, Title IX's prohibition on
discrimination ``on the basis of'' sex clearly encompasses
discrimination on the basis of sexual orientation and gender identity,
given that such bases of discrimination meet the same but-for causation
test relied upon in Bostock. See, e.g., Sheppard v. Visitors of Va.
State Univ., 993 F.3d 230, 236-37 (4th Cir. 2021); cf. Radwan v.
Manuel, 55 F.4th 101, 131-32 (2d Cir. 2022) (addressing but not
deciding the question). Indeed, some courts have construed Title IX to
impose a ``motivating factor'' standard, and discrimination based on
sexual orientation and gender identity is motivated, at least in part,
by sex. See, e.g., Doe v. William Marsh Rice Univ., 67 F.4th 702, 708-
09 (5th Cir. 2023). As Bostock explained, ``under this more forgiving
[motivating factor] standard, liability can sometimes follow even if
sex wasn't a but-for cause of the . . . challenged decision.'' 590 U.S.
at 657. Nonetheless, the Court concluded that even ``the more
traditional but-for causation standard'' encompassed discrimination on
the basis of sexual orientation and gender identity. Id. Thus, Title
IX's statutory text is no more permissive of discrimination on the
basis of sexual orientation and gender identity than Title VII's.
With respect to the justification for changes from the position
taken in the now-archived Rubinstein Memorandum, the Department
explained in the July 2022 NPRM that the Department found that the
position taken in the Rubinstein Memorandum was at odds with Title IX's
text and purpose and the reasoning of the courts that had considered
the issue. 87 FR 41531-37. In particular, the Department found that
Title IX and its implementing regulations did not determinatively set
forth the definition of ``sex'' to mean ``biological sex.'' 87 FR
41537. The Department agrees, however, that even assuming ``sex'' means
``biological sex,'' Title IX's prohibition on sex discrimination
encompasses sexual orientation and gender identity discrimination. See
87 FR 41531. A recipient would not therefore need to determine on a
case-by-case basis whether a particular incident of sexual orientation
or gender identity discrimination is rooted in ``biological sex'' as
discrimination on these bases always demands consideration of sex. The
Department is also concerned that a narrower interpretation could
exclude some individuals from Title IX protections that properly apply
to all students. Indeed, the Department recognized this concern in the
Rubinstein Memorandum. See Rubinstein Memorandum at 2 (declining to
conclude that all sexual orientation discrimination constitutes sex
discrimination, but suggesting that Bostock's analysis ``would
logically extend to individuals who allege discrimination on the basis
that they are heterosexual or non-transgender.'')
With respect to the Supreme Court's decision in Bostock, the
Department first notes that the Court did not adopt a particular
definition of ``sex'' in Bostock, instead ``assum[ing]'' a definition
provided by the employers that the employees had accepted ``for
argument's sake.'' 590 U.S. at 655. The Court made clear that ``nothing
in [its] approach to these cases turn[ed] on the outcome of the
parties' debate'' about the definition of sex. Id. The same is true
here. Nothing in the Department's interpretation of the scope of
discrimination ``on the basis of sex'' under Title IX turns on
resolving the meaning of sex because, as in Bostock and as explained
further below, it is impossible to discriminate against a person on the
bases listed in Sec. 106.10 without discriminating against that
individual based, at least in part, on sex, even if ``sex'' is
understood only in terms of certain physiological sex characteristics.
The Department disagrees with the commenter who argued that
discrimination against a person because they are nonbinary or bisexual
does not require consideration of a person's sex. As the Court
explained in Bostock, such traits are ``inextricably bound up with
sex.'' 590 U.S. at 660-61. Moreover, it is plainly sex discrimination
under longstanding Supreme Court precedent to treat a person worse
because of their gender nonconformance. See Price Waterhouse, 490 U.S.
at 251. A person's nonconformity with expectations about the sex of the
person to whom they should be attracted or the sex with which they
should identify implicate one's sex, and discrimination on that basis
is prohibited. See Whitaker, 858 F.3d at 1048.
The Department acknowledges that Bostock interpreted Title VII and
did not purport to interpret other Federal laws or address issues not
raised in that litigation. See 590 U.S. at 681. The Department notes
that this is consistent with the principle that Federal courts may not
provide advisory opinions and are limited to deciding particular cases
and controversies. See, e.g., Carney v. Adams, 592 U.S. 53, 58 (2020).
As noted above, because the statutory prohibitions against sex
discrimination in Title VII and Title IX are similar, the Supreme Court
and other Federal courts look to interpretations of Title VII to inform
Title IX. Thus, Bostock's discussion of the text of Title VII
appropriately informs the Department's analysis of Title IX. Since
Bostock, three Federal courts of appeals have held that the plain
language of Title IX's prohibition on sex discrimination must be read
similarly to Title VII's prohibition. The Department agrees with the
reasoning in these cases. See A.C. by M.C. v. Metro. Sch. Dist. of
Martinsville, 75 F.4th 760, 769 (7th Cir. 2023); Grabowski, 69 F.4th at
1116-17; Doe v. Snyder, 28 F.4th 103, 113-14 (9th Cir. 2022); Grimm,
972 F.3d at 616.
More broadly, the Department also disagrees with commenters who
argued that Title VII case law should not be considered when
interpreting the scope of prohibited sex discrimination under Title IX.
Federal courts, including the Supreme Court, often look to
interpretations of other laws barring sex discrimination, particularly
Title VII, when analyzing Title IX.\89\
---------------------------------------------------------------------------
\89\ See, e.g., Davis, 526 U.S. at 631 (holding that Title VII
agency principles do not apply in determining liability for money
damages under Title IX, but finding Title VII remains relevant in
determining what constitutes sex discrimination under Title IX);
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 617, n.1 (1999)
(Thomas, J., dissenting) (``This Court has also looked to its Title
VII interpretations of discrimination in illuminating Title IX.'').
---------------------------------------------------------------------------
The Department also disagrees with commenters who asserted that the
fact that Title IX and its regulations include several express
exceptions that permit recipients to separate or treat students
differently on the basis of sex under certain circumstances prevents
the Department from interpreting Title IX's broad prohibition on sex
discrimination consistent with courts' interpretation of Title VII or
other Federal sex discrimination laws. Indeed, like Title IX, Title VII
also includes an exception that allows an employer to differentiate or
separate individuals on the basis of sex in certain circumstances. See
42 U.S.C. 2000e-2(e)(1) (allowing an employer to consider a person's
sex in employment decisions where a person's sex is ``a bona fide
occupational qualification reasonably necessary to the normal operation
of that particular business or enterprise''). In addition, like Title
IX, Title VII has also been interpreted to permit employers to offer
sex-separate facilities despite its ``sex-prohibitive'' framework. See,
e.g., U.S. Equal Emp. Opportunity Comm'n, Sexual Orientation and Gender
Identity (SOGI) Discrimination, https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination (last visited Mar.
12, 2024). The Department therefore disagrees that Title IX's
[[Page 33808]]
limited allowance for separate or different treatment on the basis of
sex in certain contexts prevents the Department from relying on Title
VII case law to inform its interpretation of Title IX's general
prohibition on sex discrimination.
Changes: None.
4. Sexual Orientation and Gender Identity Discrimination Generally
Comments: Some commenters shared views on Title IX's coverage of
sexual orientation and gender identity discrimination together.
Comments that separately address coverage of those bases are discussed
in separate sections below.
Many commenters expressed support for the proposed inclusion of
sexual orientation and gender identity in proposed Sec. 106.10 because
they stated that it would: help recipients create more inclusive, safe,
and supportive environments for all students, allowing for equal and
equitable access to education; protect LGBTQI+ students and families
from sex discrimination in schools; help reduce elevated rates of
discrimination, suicidality, and bullying experienced by LGBTQI+
students; be consistent with congressional intent in passing Title IX,
which was to broadly prohibit sex discrimination; and ensure that Title
IX is given ``a sweep as broad as its language.'' Other commenters
supported the inclusion of sexual orientation and gender identity in
proposed Sec. 106.10, noting the high levels of sex discrimination,
including sex-based harassment, against LGBTQI+ students and school
employees and the negative effects of such discrimination.
Some commenters expressed concern that coverage of sexual
orientation and gender identity discrimination will harm religious
students, including religious students who do not attend recipient
institutions that are eligible for a religious exemption, particularly
if they could be held responsible for conduct that does not constitute
intentional discrimination (e.g., expressing a religious belief that
another individual finds offensive). Commenters also asserted that
institutions with conflicting religious beliefs would be forced to
choose between accepting Federal funding and adopting policies and
curricula related to sexual orientation and gender identity that align
with their religious beliefs. Some commenters opposed proposed Sec.
106.10 because students who participate in Federal financial aid
programs may be unable to attend their college of choice if those
colleges choose to forego Federal funds to avoid obligations under the
proposed regulations.
Some commenters asked the Department to amend proposed Sec. 106.2
to include definitions of conduct and practices that may constitute
discrimination on the bases of sexual orientation and gender identity,
including intentional use of offensive language, and to distinguish
between genuine mistakes and repeated and intentional conduct.
Some commenters raised concerns that proposed coverage of sexual
orientation and gender identity discrimination will be costly for
recipients to implement and may make recipients vulnerable to costly
and increased complaints, investigations, and litigation. Some
commenters requested that the Department issue additional guidance and
provide technical assistance and training with regard to best practices
creating educational environments free from discrimination against
LGBTQI+ students and families, and responding promptly and
appropriately to all complainants regardless of sexual orientation and
gender identity.
Discussion: The Department agrees with commenters who noted that
discrimination based on sexual orientation and gender identity is a
serious problem that the final regulations' clarification of the scope
of sex discrimination will help to address in the context of federally
funded education programs and activities. The Department also agrees
that the final regulations will increase the inclusion and the safety
of LGBTQI+ students and employees in schools; provide them with access
to a process to address sex-based harassment; and be consistent with
the text and intent of Title IX. The Department agrees with the
comments that the inclusion of sexual orientation and gender identity
in Sec. 106.10 will improve consistency between Title IX and the
nondiscrimination laws of some States and the policies of many
recipients.
The Department disagrees with the contention that including sexual
orientation and gender identity in the scope of Sec. 106.10 harms
women. Recognizing these bases of sex discrimination under Title IX in
no way lessens the force of Title IX's protections against
discrimination that limits educational opportunities for girls and
women. Further, discrimination based on sexual orientation or gender
identity is typically motivated by the same sex stereotypes that limit
opportunities for women regardless of whether they identify as LGBTQI+.
See, e.g., Price Waterhouse, 490 U.S. at 250 (``In the specific context
of sex stereotyping, an employer who acts on the basis of a belief that
a woman cannot be aggressive, or that she must not be, has acted on the
basis of gender.''); Grabowski, 69 F.4th at 1117 (holding that
discrimination against a student because they do not conform to a
particular masculine or feminine sex stereotype is prohibited under
Title IX); 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
athletic funding decisions were based on ``paternalism and
stereotypical assumptions about [women's] interests and abilities,''
and a ``remarkably outdated view of women and athletics''); Videckis v.
Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (``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); 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.'').
With respect to concerns about potential conflicts with beliefs of
religious students and institutions, the Department notes that it is
fully committed to respecting rights protected under the First
Amendment and adhering to Title IX's religious exemption. A recipient's
compliance with the final regulations must be carried out consistent
with Sec. 106.6(d), which specifies that nothing in these regulations
requires a recipient to restrict rights protected under the First
Amendment or any other constitutional provisions, and no other
provision authorizes such action. Further, Title IX does not ``apply to
an educational institution which is controlled by a religious
organization if the application of [20 U.S.C. 1681(a)] would not be
consistent with the religious tenets of such organization.'' 20 U.S.C.
1681(a)(3).
The Department declines the suggestion to add definitions of
specific conduct and practices that constitute sexual orientation or
gender identity discrimination because the Department refrains from
offering opinions about how the regulations apply to specific facts
without first conducting an investigation. The Department notes
[[Page 33809]]
that school policies that limit or deny a student's participation in a
recipient's education program or activity on the basis of that
student's sexual orientation or gender identity are subject to Title
IX's prohibitions on sex discrimination. The Department will
investigate complaints and make fact-specific determinations, as
appropriate, to determine whether a particular practice or policy
limits or denies a student their right to participate in the
recipient's education program or activity free from sex discrimination.
34 CFR 100.7 (incorporated through 34 CFR 106.81).
The Department is cognizant that some commenters disagree with
Title IX's coverage of sexual orientation and gender identity
discrimination, but the Department is guided by the text and purpose of
the statute. The Department's goal in adopting Sec. 106.10 is to
clarify the scope of Title IX's prohibition on sex discrimination,
consistent with Title IX's text and purpose and the interpretations of
Federal courts.
Likewise, the Department maintains that it has sufficiently
examined relevant data on the impact of these regulations and accounted
for such impact. In connection with the clarification of Title IX's
scope under Sec. 106.10, the Department's view is that articulating
this standard will result in greater nondiscrimination protection,
which in turn will result in more students able to access education and
employees able to work free from sex discrimination. For a detailed
analysis of costs and benefits related to the final regulations, please
see the Regulatory Impact Analysis. These final regulations protect
recipients' discretion to shape responses to sex discrimination in
nondiscriminatory ways that account for the needs of the parties
involved. The final regulations clarify the scope of a recipient's
legal obligations. They do not, however, specify outcomes for all
scenarios, which will turn on particular facts and circumstances.
The Department agrees that discrimination or hostility toward
LGBTQI+ students, parents, guardians, caregivers, and family members
can deny students' equal access to educational opportunities. Anyone
who believes that a recipient has engaged in prohibited discrimination
against a person participating or attempting to participate in the
recipient's education program or activity may file a complaint with
OCR.
Changes: None.
5. Gender Identity
Comments: In addition to the comments discussed above, the
Department received comments specifically focused on coverage of gender
identity discrimination under proposed Sec. 106.10. Some commenters
urged the Department to articulate a specific definition of ``gender
identity,'' or clarify if certain identities would constitute ``gender
identity'' under proposed Sec. 106.10. Some commenters argued that the
term ``gender identity'' is subjective, unconstitutionally vague,
overbroad, and requires ``self-identification'' of which others may not
be aware, or that may change unbeknownst to a recipient. One commenter
asserted that the failure to define the term makes it impossible for
recipients to determine how to adequately ensure they do not
discriminate on that basis.
Other commenters asked for clarity on how a recipient must balance
a student's allegations of gender identity discrimination against
another student's right to freedom of expression.
Some commenters asked whether the prohibition on gender identity
discrimination protects only transgender people. One commenter stated
that it would be more consistent with Bostock to frame proposed Sec.
106.10 as discrimination based on transgender status.
Other commenters urged the Department to modify proposed Sec.
106.10 or another section of the regulations to permit recipients to
separate students based on biological sex rather than gender identity
when reasonable to ensure privacy, safety, and fairness.
One commenter asked the Department to clarify how Title IX's
coverage of gender identity discrimination may overlap with court
decisions treating gender dysphoria as a disability under the Americans
with Disabilities Act.
Discussion: The Department disagrees that the term ``gender
identity'' is too vague, subjective, or overbroad a term to incorporate
in the Title IX regulations, or that it is necessary to further clarify
what ``gender identity'' means in the regulations. The Department
understands gender identity to describe an individual's sense of their
gender, which may or may not be different from their sex assigned at
birth. Courts have used the term consistent with this understanding,
see Bostock, 590 U.S. at 660, 669; Parents for Priv. v. Barr, 949 F.3d
1210, 1217 (9th Cir. 2020); Whitaker, 858 F.3d at 1049, sometimes with
only a brief explanation, Grimm, 972 F.3d at 594 (``gender identity--or
their deeply felt, inherent sense of their gender''); Boyertown Area
Sch. Dist., 897 F.3d at 522 (``A person's gender identity is their
subjective, deep-core sense of self as being a particular gender'');
Schroer v. Billington, 577 F. Supp. 2d 293, 295 (D.D.C. 2008). The term
is now well understood as it is used widely in laws and policies, and
so the Department determined that--consistent with the approach taken
by many courts--it is unnecessary to articulate a specific definition
of ``gender identity'' in Sec. 106.10.
The Department appreciates a commenter's recognition that one
person may not know another's gender identity without inquiring unless
the other person volunteers the information. This, however, does not
undermine the fact that gender identity discrimination is sex
discrimination. By comparison, one person may not know another person's
sexual orientation, religion, race, or national origin without asking,
but may still discriminate against them by, for example, harassing them
on one of those bases in a manner that creates a hostile educational
environment, or by discriminating against them based on perceived
traits. To comply with the prohibition on gender identity
discrimination, a recipient must not treat individuals more or less
favorably based on their gender identity and, as described in more
detail in the discussion of Sec. 106.31(a)(2), generally may not
prevent a person from participating in its education program or
activity consistent with the person's gender identity.
The Department declines the suggestion to revise Sec. 106.10 to
address separation of students based on sex. Permissible sex separation
under the statute is discussed further below in the discussion of Sec.
106.31(a)(2).
The Department declines the suggestion to include discrimination
based on transgender status instead of or in addition to discrimination
based on gender identity in Sec. 106.10. Bostock instructs that when a
person is discriminated against because their gender identity is not
consistent with their sex assigned at birth, ``sex'' is, at least in
part, a basis for that discrimination. See Bostock, 590 U.S. at 669.
This therefore includes discrimination against a person because they
are transgender, or because they identify in some other way that is
inconsistent with their sex assigned at birth. See id. at 669, see
also, e.g., Doe v. Mass. Dep't of Corr., No. CV 17-12255, 2018 WL
2994403 (D. Mass. June 14, 2018); EEOC v. R.G. & G.R. Harris Funeral
Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Whitaker, 858 F.3d 1034. The
Department also notes that a dissent in Bostock asserted that ``there
is no apparent difference between discrimination because of transgender
status and discrimination because of
[[Page 33810]]
gender identity.'' 590 U.S. at 686, n.6 (Alito, J. joined by Thomas,
J., dissenting). The Department has determined that ``gender identity''
encompasses a person's ``transgender status,'' but is a more widely
understood term that more accurately and fully reflects the scope of
Title IX's protections.
With respect to the need to respond to a student's allegations of
gender identity discrimination while respecting another student's right
of freedom of expression, there is no inherent conflict between one
student's right to be free from sex discrimination and another
student's right to freedom of expression, and the Department notes that
it is fully committed to respecting rights protected under the First
Amendment. For additional discussion of the First Amendment, see the
definition of Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Section I.C) (Sec. 106.2).
With respect to the question about gender dysphoria, the Department
notes that the Fourth Circuit recognized that Congress directed
``courts [to] construe the ADA in favor of maximum protection for those
with disabilities,'' and saw ``no legitimate reason why Congress would
intend to exclude from the ADA's protections transgender people who
suffer from gender dysphoria.'' Williams v. Kincaid, 45 F.4th 759, 769-
70, 773 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (June 30, 2023)
(No. 22-633). A recipient may have overlapping obligations not to
discriminate against a transgender individual based on disability in
addition to the final regulations' prohibition on gender identity
discrimination.
Changes: None.
6. Sexual Orientation
Comments: Some commenters urged the Department to define ``sexual
orientation'' and clarify what conduct may be considered discrimination
or harassment based on sexual orientation. Some commenters who opposed
protections based on sexual orientation argued that the term is vague
and could be interpreted in ways that harm students or encompass
particular sexual practices or abusive or criminal conduct. One
commenter expressed concern that the July 2022 NPRM conflates ``gay''
with ``queer'' and that ``queer'' can be interpreted very broadly.
One commenter asked whether a recipient can apply provisions
permitting sex separation to separate students by sexual orientation.
Another commenter asked the Department to clarify that Title IX
does not and cannot interfere with the private associational rights of
lesbian, gay, and bisexual individuals.
Discussion: The Department disagrees with commenters who asserted
that the term ``sexual orientation'' must be defined in the Title IX
regulations. Courts routinely use the term without providing an express
definition. See, e.g., Bostock, 590 U.S. at 653-54, 671; Grabowski, 69
F.4th at 1113; Hively, 853 F.3d at 340. The term is now well understood
as it is used widely in laws and policies. The Department strongly
disagrees with commenters who falsely suggested that protection from
sexual orientation discrimination would encompass abusive and criminal
conduct that does not describe the sex of a person to whom another
person is attracted, as the term sexual orientation is commonly
understood to mean. Further, the idea that stronger protections for
lesbian, gay, and bisexual individuals will result in protections for
abusive or criminal activity is itself grounded in harmful sex
stereotypes.
The Department recognizes that a concept like sexual orientation is
distinct from sex, even if it is ``inextricably bound up with sex,''
cf. Bostock, 590 U.S. at 660-61. As discussed above, Sec. 106.10 does
not define ``sex,'' but rather clarifies the scope of Title IX's
prohibition on ``sex discrimination.'' When the regulations permit
separation on the basis of ``sex,'' Sec. 106.10 does not permit a
recipient to separate students on the basis of sexual orientation or
other bases in Sec. 106.10, such as pregnancy or sex stereotypes.
Indeed, a recipient's intentional separation or different treatment of
students based on their sexual orientation generally would constitute
sex discrimination under the final regulations. Cf. Bostock, 590 U.S.
at 659-62.
The final regulations prohibit discrimination on the basis of
sexual orientation under Title IX. See Sec. 106.10. Nothing in these
final regulations impacts any private associational rights of lesbian,
gay, and bisexual individuals.
Changes: None.
7. Sex Characteristics
Comments: Some commenters applauded the inclusion of an explicit
prohibition on discrimination based on sex characteristics in proposed
Sec. 106.10. Commenters asserted that discrimination based on sex
characteristics, including intersex traits, is invariably motivated by
sex-based considerations, and coverage under Title IX is thus
consistent with the reasoning of Bostock and other Federal court
precedent. Some commenters asserted that the 2020 amendments failed to
clarify the nondiscrimination protections for people whose anatomy is
neither typically male nor typically female. Other commenters objected
to the Department's reliance on court cases that address gender
identity discrimination and asserted that the term ``sex
characteristics'' should not encompass ``gender identity.''
Some commenters urged the Department to clarify the term ``sex
characteristics,'' because they believed the term is vague, should be
explicitly limited to mean only male or female, or should only refer to
reproductive sex traits. Some commenters asserted that coverage of
discrimination based on sex characteristics should be based on
objective medical analysis or observation and limited to conditions
affecting an individual's reproductive capacity. A commenter argued
that sex characteristics should not be based on a subjective perception
of one's identity. The commenter argued that the Department's assertion
that ``[d]iscrimination 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'' is
vague and misleading. 87 FR 41532.
Some commenters supported the proposed prohibition on
discrimination on the basis of sex characteristics because it would
protect intersex people from discrimination and denial of educational
opportunities. Commenters noted that discrimination against intersex
individuals is often rooted in sex stereotypes. One commenter urged the
Department to provide examples of prohibited discrimination that
intersex students may face, such as harassment based on a student's
visible nonconformity with sex stereotypes caused by their intersex
traits, inappropriate disclosure of medical information about a
student's intersex traits, or denial of access to sex-separate
facilities consistent with a student's gender identity based on a
student's intersex traits.
One commenter objected to the term ``intersex,'' arguing that it is
a colloquial term, and suggested that the term ``differences of sex
development'' is more accurate.
Discussion: The Department agrees with commenters that the
prohibition on discrimination based on sex characteristics in Sec.
106.10 is consistent with Title IX and sex discrimination case law.
See, e.g., Bostock, 590 U.S. at 669 (addressing discrimination against
[[Page 33811]]
``persons with one sex identified at birth and another today''); Grimm,
972 F.3d at 608. In the July 2022 NPRM, the Department cited case law
involving gender identity discrimination for the principle that sex
discrimination bars discrimination based on traits that are
``inextricably bound up with'' sex. 87 FR 41532; Bostock, 590 U.S. at
660-61.
The Department appreciates the opportunity to clarify that the term
sex characteristics is intended to refer to physiological sex-based
characteristics. Sex discrimination based on a person's physiological
sex characteristics may include discrimination based on a person's
anatomy, hormones, and chromosomes associated with male or female
bodies. As explained in the July 2022 NPRM, discrimination on the basis
of sex characteristics includes discrimination based on intersex
traits. 87 FR 41532.
The Department disagrees with a commenter who suggested that a
medical diagnosis may be required to substantiate discrimination based
on sex characteristics, or that sex characteristics are necessarily
limited to a person's reproductive capacity. Discrimination based on a
person's physiological sex characteristics could be considered sex
discrimination regardless of any specific medical diagnosis, and could
include, for example, discrimination based on physiological sex
characteristics that differ from or align with expectations generally
associated with male and female bodies.
The Department agrees with commenters who argued that the
prohibition on discrimination on the basis of sex characteristics in
Sec. 106.10 will help clarify protections from sex discrimination for
people with intersex traits, among others. The Department declines to
make definitive statements about examples, due to the necessarily fact-
specific nature of the analysis, but the Department recognizes that
examples such as inappropriate disclosure of medical information about
a student's intersex traits could constitute prohibited discrimination
based on sex characteristics.
With respect to the term ``intersex,'' the Department notes that it
did not propose using this term in the regulations, but rather
described intersex traits as an example of a context in which the
prohibition on discrimination based on sex characteristics could apply.
The Department uses the term ``intersex'' because it is more accessible
and commonly used than ``differences of sex development.'' The
Department also notes, however, that the July 2022 NPRM also cited
guidelines from the Consortium on the Management of Disorders of Sex
Development, and clarifies that the Department understands the term
``intersex'' to include the same spectrum of conditions. 87 FR 41532.
Changes: None.
8. Sex Stereotypes
Comments: Some commenters objected to the Department's reliance on
Price Waterhouse for the proposition that discrimination based on sex
stereotypes constitutes sex discrimination because Price Waterhouse
interpreted Title VII rather than Title IX. Commenters further asserted
that Price Waterhouse's plurality deemed sex stereotyping to be
probative of sex discrimination, but not to constitute sex
discrimination in and of itself.
One commenter argued that the term ``sex stereotypes'' is open to
overbroad and inconsistent interpretation absent an objective
definition of ``sex.''
One commenter asked the Department to clarify that the application
of sex-specific rules and practices is not a form of sex stereotyping.
Discussion: The July 2022 NPRM describes sex stereotypes as ``fixed
or generalized expectations regarding a person's aptitudes, behavior,
self-presentation, or other attributes based on sex.'' 87 FR 41533. The
Department disagrees that any differences between Title VII and Title
IX support a conclusion that Title IX does not prohibit discrimination
based on sex stereotypes. Sex stereotyping violates Title IX when it
operates to exclude a person from participation in, deny a person the
benefits of, or otherwise subject a person to discrimination under a
recipient's education program or activity. As noted in the July 2022
NPRM, many courts have applied the reasoning in Price Waterhouse to
hold that sex stereotyping can be a form of sex discrimination. 87 FR
41533-34; 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, 213 F.3d at 880 (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''); see also Grabowski, 69 4th at 1117.
The Department also disagrees that ``sex'' must be defined narrowly
to avoid overbroad application of a prohibition on discrimination based
on sex stereotypes. The Department appreciates the opportunity to
clarify that not all conduct one might label ``sex stereotyping''
necessarily violates Title IX. Rather, in order to establish sex
discrimination under Title IX, including discrimination based on sex
stereotypes, a school policy, practice, or other conduct must, on the
basis of sex, exclude a person from participation in, deny a person the
benefits of, or otherwise subject a person to discrimination under a
recipient's education program or activity. The Department has specified
in Sec. 106.31(a)(2) that otherwise permissible sex separation is
consistent with Title IX as long as it is carried out in a manner that
does not impose more than de minimis harm on affected students.
Changes: None.
9. Pregnancy or Related Conditions
Comments: Many commenters supported the clarification provided in
Sec. 106.10 that Title IX's prohibition on sex discrimination applies
to discrimination on the basis of pregnancy or related conditions.
Commenters said that discrimination based on pregnancy or related
conditions is a type of sex discrimination that is far too common,
prevents students from having equal access to educational
opportunities, and derails education and careers. Commenters said that
the proposed regulations will increase pregnant students' access to
educational opportunities.
Some commenters noted that although the Department's Title IX
regulations have prohibited recipients from discriminating against
students based on pregnancy or related conditions since 1975, pregnant
and parenting students are routinely stigmatized, discriminated
against, and denied the resources and support they need to thrive.
Some commenters appreciated that the proposed regulations would
clarify that harassment based on pregnancy or related conditions is a
form of sex-based harassment. Some commenters noted that pregnant
students experience higher rates of sexual harassment, which negatively
impacts their education.
Some commenters described personal stories of harassment based on
pregnancy, noting that students who become pregnant are often subjected
to shame, punishment, or unwanted sexual attention and others suggested
that schools are more likely to ignore or punish pregnant or parenting
students who report sexual harassment because of stereotypes that they
are
[[Page 33812]]
``promiscuous.'' Commenters said that explicit inclusion of pregnancy
or related conditions in the scope of sex discrimination in Sec.
106.10, combined with better procedures for resolving complaints, will
foster an atmosphere of respect, and that students will feel safer
knowing that any discrimination and harassment they experience will be
properly addressed.
Some commenters suggested that proposed Sec. 106.10 should be
amended to add ``current, potential, or past'' to the description of
``pregnancy or related conditions'' that are protected from
discrimination. One commenter suggested that the Department add
``reproductive health'' to prohibit harassment a person might
experience based on their views on abortion, birth control, and other
aspects of reproductive health. As an alternative, the commenter
suggested changing the wording of proposed Sec. 106.10 to make the
meaning of ``related conditions'' clearer but did not suggest a
specific revision.
One commenter asserted that Sec. 106.10 would for the first time
expand the scope of prohibited pregnancy discrimination to apply to all
aspects of a recipient's education program or activity, rather than
only admissions.
Discussion: Section 106.10 makes clear that Title IX's prohibition
on sex discrimination includes discrimination based on pregnancy or
related conditions. While this interpretation of Title IX is
longstanding, as discussed above, many of these comments further
demonstrated the need for Sec. 106.10, as they show that pregnant
students face higher rates of sexual harassment than non-pregnant peers
and that recipients sometimes improperly rely on sex stereotypes about
this population, which impedes the recipient's response. The comments
further show that although discrimination based on pregnancy or related
conditions has been prohibited by the Title IX regulations for decades,
the existing regulations lacked clarity and consistency regarding
recipient obligations. The Department agrees with commenters that Sec.
106.10 is both consistent with Title IX's nondiscrimination mandate and
essential to ensuring that students are not denied educational
opportunities because of sex discrimination, including harassment,
based on pregnancy or related conditions.
The Department does not agree that it is necessary to add
``current, potential, or past'' to modify ``pregnancy or related
conditions'' in Sec. 106.10 to protect against sex discrimination on
this basis because final Sec. Sec. 106.21(c), 106.40(b)(1), and
106.57(b) already prohibit discrimination based on ``current,
potential, or past pregnancy or related conditions.''
The Department does not need to clarify the meaning of ``related
conditions'' in Sec. 106.10 because ``pregnancy or related
conditions'' is separately defined in Sec. 106.2. The Department also
declines to add ``reproductive health'' to the final regulations
because the scope of the commenter's suggested ``discrimination on the
basis of reproductive health'' is unclear.
The commenter who suggested that adding a reference to ``pregnancy
or related conditions'' in Sec. 106.10 would for the first time expand
the scope of pregnancy nondiscrimination protection beyond a
recipient's admissions process is mistaken. Sections of the current
Title IX regulations in Sec. Sec. 106.40, 106.51, and 106.57 have long
prohibited pregnancy discrimination against students and employees in
areas other than admissions. 40 FR 24128 (codified at 45 CFR
86.40(b)(2), 86.51(b)(6), 86.57(b) (1975)); 34 CFR 106.40(b)(1),
106.51(b)(6), 106.57(b) (current).
Changes: None.
10. Menstruation or Related Conditions
Requests To Add ``Menstruation or Related Conditions'' Within Scope of
Sex Discrimination
Comments: Some commenters argued that to meet the goal of
prohibiting all sex discrimination covered by the statute, the
Department should add ``menstruation and related conditions'' to the
list of prohibited bases of discrimination in proposed Sec. 106.10.
These commenters requested that the Department explicitly prohibit
discrimination based on menstruation, perimenopause, and menopause, and
all of their related conditions in the regulatory text to clarify that
such discrimination against students and employees is a form of
discrimination based on sex. They asserted that such discrimination
often includes sex-based harassment and stigma and leads to learning
loss and other harms. Commenters cited examples of discrimination such
as unnecessary menstruation-related bathroom restrictions by teachers,
coaches, and other school officials; discipline for excessive bleeding;
and harassment by employees or students. Commenters asserted that
adding ``menstruation and related conditions'' to the scope of
discrimination based on sex is consistent with the Department's
position on other types of sex discrimination, such as discrimination
based on sex characteristics. Commenters added that menstruation-
related coverage will help protect all persons who menstruate.
Some commenters argued that in the alternative, the Department
should amend its definition of ``pregnancy or related conditions'' in
Sec. 106.2 to state that ``pregnancy or related conditions'' includes
menstruation or related conditions. Commenters argued that--in a manner
similar to the July 2022 NPRM's explanation of discrimination based on
pregnancy or related conditions--discrimination based on menstruation
or related conditions is often based on stereotypes about women and
society's sex-based indifference to their needs, and that policies fail
to accommodate conditions associated with women as effectively as those
associated with men. A group of commenters further requested that the
Department require reasonable modifications for menstruation or related
conditions for students and employees, such as changes to attendance
policies to enable bathroom access, dress code modifications, or
permission to request a classroom or seat that is closer to the
bathroom. Some commenters requested that the Department go beyond
offering reasonable modifications to individual students and require
all recipients to provide access to menstrual products and
``menstruation-friendly'' bathrooms, noting that one recent study
showed that around 20 percent of teenagers struggled to or could not
afford menstrual products, and that students from lower-income
households, students of color, and those in rural communities with
limited resources were most affected. Commenters pointed to other
studies demonstrating that without access to menstrual products,
students may face barriers to learning, such as being forced to arrive
late to class, leave early, or miss school altogether, all of which can
affect their academic success. To minimize loss of learning time, some
commenters argued that students should not be disciplined or
marginalized due to menstruation.
Discussion: Discrimination based on menstruation, perimenopause,
menopause, or their related conditions is sex discrimination because,
depending on the facts presented, it can overlap or fall within the
scope of discrimination based on pregnancy or related conditions, sex
stereotypes, or sex characteristics under Sec. 106.10. Menstruation is
a process, triggered by hormones, that prepares the body for possible
pregnancy. It typically occurs from puberty until menopause.
Perimenopause (the time of transition to
[[Page 33813]]
menopause) and menopause are processes related to cessation of
menstruation. Menstruation, perimenopause, and menopause may each be
accompanied by various medical conditions, such as premenstrual
syndrome, premenstrual dysphoric disorder, missed or irregular periods,
migraines, pain, hot flashes, or heavy bleeding.
Accordingly, while the Department acknowledges commenters'
suggestion that the final regulations explicitly include ``menstruation
or related conditions,'' either standing alone or as part of the
definition of ``pregnancy or related conditions'' under Sec. Sec.
106.2 or 106.10, the Department concludes that doing so is unnecessary
as discrimination on this basis is already covered as outlined above.
We appreciate the opportunity to clarify for schools, students, and
employees that harassment and other discrimination based on
menstruation, perimenopause, menopause, or their related conditions and
symptoms is prohibited sex discrimination under Sec. 106.10.
Recognizing that discrimination based on menstruation or related
conditions is in the scope of sex discrimination is also consistent
with court decisions that have reached the same conclusion when
interpreting Title VII. In particular, the Department notes that those
decisions held that Title VII prohibited discrimination on the basis of
menstruation or related conditions based on the statute's ``because of
sex'' language, not the ``pregnancy . . . or related conditions''
language of the Pregnancy Discrimination Act. See, e.g., Petrosino v.
Bell Atl., 385 F.3d 210, 215 (2d Cir. 2004) (``gender-hostile
environment'' was sufficiently severe and pervasive to defeat motion
for summary judgment when male supervisors ``routinely [connected]
their perceptions of [a menstruating worker's job performance] and her
anatomy, especially [with] vulgar references to her breasts and
menstrual cycle''); Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d
179, 196 (4th Cir. 2000) (asking a factory worker if she was ``on the
rag today'' in front of colleagues multiple times a month was evidence
of a hostile work environment).
To the extent that discrimination based on menstruation or related
conditions becomes a barrier to an individual's participation in a
recipient's education program or activity, schools have an obligation
to address such barriers, prevent their recurrence, and remedy their
effects. See Sec. 106.44(a) and (f)(1). These barriers could include,
for example, menstruation-related harassment by students or employees,
unreasonable limits on students' or employees' bathroom access to
address menstrual needs, conduct by school officials that publicly
exposes that a student is menstruating (e.g., requiring a student to
remove a garment around their waist, or prohibiting a student from
changing clothes at school when the student needs to address a
menstruation-related issue), or similar menstruation-related
restrictions or discipline. See generally T4PA Center, Considerations
for Menstrual Equity and Student Success, at 4 (2023).
The Department declines to change the regulatory text to explicitly
require recipients to provide reasonable modifications for menstruation
or related conditions for students and employees, or access to
menstrual products and ``menstruation-friendly'' bathrooms. The
Department intends to continue to study the issue to determine whether
further action or clarification is required to address discrimination
on the basis of menstruation. Presently, the Department maintains that
many, if not most, of the menstruation-related issues students and
employees face will be addressed by recipients in their compliance with
the nondiscrimination protections of Sec. 106.10, such as requiring
flexibility in a dress code policy for a student who has experienced a
menstrual leak and for whom discipline for a resulting failure to
comply with the dress code would be discriminatory; requiring a
recipient to address a situation in which one employee is harassed by
another for having headaches related to perimenopause; or requiring a
recipient to allow a teacher to use a fan in a classroom to address hot
flashes due to menopause, if, for example, the recipient allows
teachers to use fans or other items or make other changes in their
classroom to increase comfort for other types of reasons. The
Department further notes that, due to the specific facts presented,
should a student's menstruation or related conditions meet the
definition of ``pregnancy or related conditions'' set out in Sec.
106.2, the student is entitled to reasonable modifications under Sec.
106.40(b)(3)(ii). For example, a student suffering from polycystic
ovary syndrome, may also be entitled to reasonable modifications for
pregnancy or related conditions if the student requires time off for
medical treatment. Similarly, to the extent a student's or employee's
menstruation-related condition qualifies as a disability under Section
504 or the ADA, that individual must be provided full rights under
those laws, as applicable, including reasonable modifications.
Nothing in these final regulations precludes a recipient from using
its discretion to provide reasonable modifications to students and
employees for whom menstruation or related conditions present barriers
to education or employment.
Changes: None.
Privacy of Menstruation-Related Records
Comments: Commenters also encouraged the Department to clarify in
the regulations that students' menstruation-related records should be
kept private and may not be used to track students' or employees'
menstrual cycles, as that would raise serious privacy concerns.
Commenters urged the Department to specify that Title IX Coordinators
may not share an individual's menstruation-related information with law
enforcement or keep it in a disclosable student record. Commenters also
requested that the Department issue subsequent guidance to address this
concern.
Discussion: The Department agrees with comments expressing concern
about the privacy of records related to menstruation or related
conditions. The Department emphasizes that nothing in these regulations
requires a recipient to collect and maintain more information than is
necessary under the recordkeeping provision at Sec. 106.8(f) to ensure
that a student or employee is not discriminated against or harassed
based on menstruation or related conditions, for example in records of
complaints of sex discrimination and the steps the recipient took to
meet its obligations under Sec. 106.44. In addition, the Department's
final regulations revise Sec. 106.44(j) to prohibit a recipient from
disclosing personally identifiable information--which could include
information about menstruation or related conditions--obtained in the
course of complying with this part, with some limited exceptions. The
provision that prohibits disclosure of personally identifiable
information is explained more fully in the discussion of Sec.
106.44(j). Finally, the Department understands that supporting
recipients in the implementation of these regulations is important. The
Department will offer technical assistance, as appropriate, to promote
compliance with these final regulations.
Changes: The Department has revised Sec. 106.44(j) to clarify that
a recipient must not disclose personally identifiable information
obtained in the course of complying with this part, except in limited
circumstances.
[[Page 33814]]
Requests for Menstrual Education and Training
Comments: Some commenters requested that the Department explicitly
require a recipient to provide menstrual education and training.
Regarding training for staff, some commenters said that training
requirements for Title IX Coordinators and all staff should include
information about menstruation and related conditions and what
constitutes discrimination on that basis, so that staff members
understand the recipient's obligation to address it. Commenters
encouraged the Department to provide guidance to Title IX Coordinators,
including examples of menstruation-related discrimination that Title IX
Coordinators could use to raise awareness and sample questions that
recipients could use to conduct surveys on this issue.
Regarding students, commenters said that providing menstrual health
education to all students in middle to late elementary school, along
with puberty education, would give students the confidence and skills
they need to take care of themselves when they start menstruating,
reduce the fear and shame regarding menstruation that students often
experience, and lead to long-term changes in attitudes and policies
regarding menstruation.
Discussion: The Department acknowledges commenters' suggestion that
required training for Title IX Coordinators and other staff include
information about menstruation, related conditions, and discrimination
on that basis, so that all staff members understand the recipient's
obligation to address it. These final regulations do not explicitly
require training related to menstruation or related conditions.
However, under Sec. 106.8(d)(1), all employees must be trained on the
recipient's obligation to address sex discrimination in its education
program or activity and the scope of conduct that constitutes sex
discrimination. Because discrimination on the basis of menstruation or
related conditions falls within the scope of Sec. 106.10, schools may
benefit from including it as part of any employee training on the scope
of conduct that constitutes sex discrimination. The Department also
declines to mandate the content of trainings, beyond the general
requirement that they provide employees with the tools necessary to
identify conduct that may constitute discrimination, in order to allow
recipients flexibility. Nothing in the final regulations precludes a
recipient from including in its employee trainings more comprehensive
information on menstruation or related conditions and how they might
affect student and employee participation in the recipient's education
program or activity. Regarding the request for guidance with examples
of menstruation-related discrimination and sample survey questions, the
Department will consider whether future guidance is appropriate and
will provide technical assistance to ensure compliance with these
regulations.
With respect to menstrual education for students, the Department
does not control school curricula, see 20 U.S.C. 1232a, and does not
require recipients to provide instruction regarding menstrual health.
Nothing in these final regulations impedes a recipient's discretion to
provide accurate educational information to students.
Changes: None.
B. Section 106.31(a) Education Programs or Activities--General
1. De Minimis Harm Standard
Comments: Some commenters supported Sec. 106.31(a)(2) because it
would be consistent with courts' analysis of discrimination on the
basis of sex and would clarify a recipient's obligations under Title
IX.
Several commenters objected to the ``de minimis harm'' standard,
arguing that it is not rooted in Title IX or case law, that it is
confusing, ambiguous, vague, or overbroad, or is too malleable,
enabling recipients and the Department to act arbitrarily rather than
based on objective principles.
One commenter suggested that the Department revise proposed Sec.
106.31(a)(2) to clarify that harm must be assessed at an individual
level from the perspective of a reasonable person in the individual's
position.
Some commenters argued that proposed Sec. Sec. 106.10 and
106.31(a)(2) violate the constitutional principle of separation of
powers and the ``major questions'' doctrine as articulated by the
Supreme Court in West Virginia, 597 U.S. 697. Commenters argued that
prohibiting schools from engaging in gender identity and sexual
orientation discrimination and treating individuals consistent with a
gender identity that differs from their sex assigned at birth are
questions of great political and economic significance. Commenters
asserted that Sec. Sec. 106.10 and 106.31(a)(2) will have a broad
economic impact and that the Department has not accounted for costs
such as construction, sanctions, litigation, and non-monetary costs of
changed policies, such as risks to due process rights and free speech
concerns.
Some commenters asserted that the de minimis harm standard is
inconsistent with the hostile environment standard.
Discussion: The Department agrees with commenters who asserted that
Sec. 106.31(a)(2) is consistent with Title IX's text and purpose, and
that it will help recipients understand their nondiscrimination
obligations.
As the Department explained in the July 2022 NPRM, the Department's
regulations have long specified that separate or different treatment on
the basis of sex is generally prohibited under Title IX because such
treatment is presumptively discriminatory. 87 FR 41534; see 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.''). Despite this presumption and general prohibition,
however, the Department's regulations have long recognized limited
contexts in which sex separation or differentiation is allowed. See 87
FR 41534. The Department therefore seeks with Sec. 106.31(a)(2) to
further explain the legal authority for permitting sex separation in
certain circumstances, and the limitations the statute sets on how
recipients may carry out such separation.
Consistent with Supreme Court precedent, the Department interprets
Title IX's nondiscrimination mandate to mean that, save for the limited
instances allowed by statute and listed in the text of Sec.
106.31(a)(2), recipients may not make ``distinctions or differences in
treatment [on the basis of sex] that injure protected individuals.''
Bostock, 590 U.S. at 681 (citing Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 59-60 (2006)). The Department does not interpret
Title IX to prohibit all sex-based distinctions or separation, but
rather, only those that subject a person to injury, or harm--i.e.,
discrimination prohibited by the statute. The Department has therefore
concluded that to provide an education program or activity that does
not subject participants to sex discrimination, a recipient must not
provide sex-separate facilities or activities in a manner that subjects
any person to legally cognizable injury--i.e., more than de minimis
harm--unless there is a statutory basis for allowing otherwise.
The Department disagrees with commenters who asserted that the
Department's articulation of this ``de minimis harm'' standard is not
[[Page 33815]]
grounded in case law. Rather, it is well-established that the concept
of discrimination includes an element of injury or harm. See, e.g.,
Oncale, 523 U.S. at 81 (Title VII does not reach non-harmful
``differences in the ways men and women routinely interact with'' each
other); Peltier, 37 F.4th at 129 (``for the plaintiffs to prevail under
Title IX, they must show that . . . the challenged action caused them
harm''). Such harm, however, must generally be something more than
innocuous, or de minimis, to be actionable discrimination. See, e.g.,
Threat v. City of Cleveland, 6 F.4th 672, 678 (6th Cir. 2021); cf.
Chambers v. DC, 35 F.4th 870, 875 (D.C. Cir. 2022), judgment entered,
No. 19-7098, 2022 WL 2255692 (D.C. Cir. June 23, 2022) (declining to
decide whether Title VII includes a de minimis harm exception because
in that case, the denial of a job transfer request easily surmounted
that bar). Setting the bar at more than de minimis harm accounts for
this important aspect of courts' legal construction of the meaning of
the term ``discrimination.'' See Burlington N. & Santa Fe Ry. Co., 548
U.S. at 59 (``No one doubts that the term `discriminate against' refers
to distinctions or differences in treatment that injure protected
individuals.''); see also Bostock, 590 U.S. at 657 (``To `discriminate
against' a person, then, would seem to mean treating that individual
worse than others who are similarly situated.''). This threshold
concept is particularly important in the context of determining when
separate or different treatment on the basis of sex may be permitted,
and when it constitutes prohibited discrimination under Title IX. The
Department notes that there are injuries, including stigmatic injuries,
associated with treating individuals differently on the basis of sex,
and in such circumstances, no additional showing of a more ``material''
harm is required under Title IX.
The Department appreciates commenters' questions as to how to
determine whether a harm is more than de minimis, and whether the
inquiry is objective or purely subjective. Harm under Sec.
106.31(a)(2) must be genuine and objectively non-trivial and assessed
from the perspective of a reasonable person in the individual's
position. It is not necessary to elaborate on this point in the
regulatory text, because this objective standard is consistent with and
grounded in longstanding anti-discrimination law and its injury
requirement. See, e.g., Burlington N. & Santa Fe Ry. Co., 548 U.S. at
59, 68-69 (explaining that, under Title VII, ``judging harm must be
objective. An objective standard is judicially administrable. It avoids
the uncertainties and unfair discrepancies that can plague a judicial
effort to determine a plaintiff's unusual subjective feelings. We have
emphasized the need for objective standards in other Title VII
contexts[.]''). As discussed in detail below, Sec. 106.31(a)(2)
further clarifies that preventing a person from participating in an
education program or activity consistent with the person's gender
identity violates this standard and is generally prohibited.
The Department disagrees that the major questions doctrine applies
to the Department's adoption of Sec. Sec. 106.10 and 106.31(a)(2).
West Virginia described ``extraordinary cases'' in which an
``unprecedented'' agency action concerns issues of such ``economic and
political significance'' that there is reason to hesitate before
concluding that Congress conferred the authority. 597 U.S. at 700, 721-
23. The case also concerned a situation in which the Court concluded
that the ``agency ha[d] no comparative expertise'' in making the
relevant policy judgments and had invoked an ``ancillary'' statutory
provision to enact its regulations. Id. at 724, 729 (quotation marks
omitted). The Department's issuance of these regulations does not
resemble the circumstances described in West Virginia. The applicable
statutory provisions are in no way ancillary to the statutory scheme,
and there is nothing unprecedented about these regulations, which are
consistent with the analysis of Federal courts and the practices of
many recipients. Moreover, they reflect the Department's expertise on
what constitutes sex discrimination in education programs or
activities. See U.S. Dep't of Educ., Nondiscrimination on the Basis of
Sex in Education Programs or Activities Receiving Federal Financial
Assistance, 65 FR 52858, 52859 (Aug. 30, 2000) (discussing the
Department's ``leadership role in Title IX enforcement'').
Further, these regulations do not require the kind of costs or
restructuring that might implicate the major questions doctrine. In
West Virginia, the Court characterized the agency action as
``substantially restructur[ing] the American energy market,'' and as a
``transformative expansion'' of agency authority. 597 U.S. at 724
(quotation marks omitted). In contrast, the final regulations more
fully implement Title IX, consistent with the Department's longstanding
authority, and the Department estimates that most of the costs
associated with the final regulations that may accrue to federally
funded education programs will be offset by savings as a result of
these final regulations. Additional discussion of comments on the costs
of the final regulations can be found in the Regulatory Impact
Analysis. The Department agrees with commenters that protection from
sexual orientation and gender identity discrimination is an important
issue; its capacity to deprive students of equal access to educational
opportunities has informed the Department's decision to clarify Title
IX's coverage of sexual orientation and gender identity discrimination
in this rulemaking. The importance of this application of Title IX
supports the Department's decision to pursue this rulemaking,
consistent with Executive Order 12866.
Even if the major questions doctrine did apply, the Department's
authority is especially clear based on ordinary tools of statutory
interpretation, as the Department discusses throughout this preamble.
The final regulations fall within Congress's clear and explicit
statutory grant of authority to the Department to issue regulations
that are consistent with the objectives of Title IX. See 20 U.S.C. 1682
(authorizing the Department to ``issu[e] rules, regulations, or orders
. . . which shall be consistent with achievement of the objectives of
the statute.''). The Department is not relying on a novel or long
dormant authority in this rulemaking. Congress indisputably entrusted
the Department with the authority to articulate what constitutes sex
discrimination in schools. For a more detailed explanation of the
Department's authority, see the discussion of statutory authority
(Section II.B).
In addition, Sec. Sec. 106.10 and 106.31(a)(2) are consistent with
Federal court decisions, including those from the Supreme Court, that
have defined the contours of sex discrimination. Most recently, the
Supreme Court held in Bostock that sex discrimination, as prohibited by
Title VII, encompasses discrimination based on sexual orientation and
gender identity. 590 U.S. at 659-62; see 87 FR 41530. The Bostock Court
also flatly rejected the argument advanced in dissent that Title VII's
prohibition on sex discrimination should not be read to include sexual
orientation or gender identity because Congress had failed to add such
terms to the statute. 590 U.S. at 669-70. Indeed, the Court held that
while there was no way to know why Congress had not amended Title VII
to include those bases in subsequent years, the issue was
[[Page 33816]]
irrelevant given that the existing statutory text so clearly
encompassed discrimination on the basis of sexual orientation and
gender identity. Id. The Supreme Court's statement 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,'' Bostock, 590 U.S. at 660, is equally true
under Title IX. Federal courts have relied on Bostock to recognize that
Title IX's prohibition on sex discrimination encompasses discrimination
based on sexual orientation and gender identity. See, e.g., Grabowski,
69 F.4th at 1113; Grimm, 972 F.3d at 616. Federal courts have likewise
recognized that preventing students from participating in a recipient's
education program or activity consistent with their gender identity
causes harm that violates Title IX. See, e.g., Whitaker, 858 F.3d at
1045-46; Grimm, 972 F.3d at 617-18. The Department's final regulations
are not ``beyond what Congress could reasonably be understood to have
granted.'' West Virginia, 597 U.S. at 700-01, 724.
With respect to comments that the de minimis harm standard is
inconsistent with the hostile environment standard, the Department
disagrees. The hostile environment standard in the definition of ``sex-
based harassment'' Sec. 106.2, applies when determining whether
harassing conduct rises to the level of a hostile environment, such
that the conduct constitutes discrimination prohibited by the statute.
A recipient's obligations to respond promptly and effectively to sex-
based harassment are described in Sec. 106.44(a). Section
106.31(a)(2), on the other hand, does not apply to sex-based
harassment; it applies only to the manner in which a recipient carries
out otherwise permissible different treatment or separation on the
basis of sex. As explained below, however, absent a limited exception
under Title IX, a recipient policy or practice that separates or treats
students differently based on sex violates Sec. 106.31(a)(2) if the
policy or practice prevents a student from participating in the
recipient's education program or activity consistent with their gender
identity or otherwise causes a student more than de minimis harm.
Changes: None.
2. Application
Comments: Some commenters asked the Department to clarify how
proposed Sec. 106.31(a)(2) would apply to people other than students
(e.g., employees, parents, or other parties participating in a
recipient's education program or activity).
Some commenters asked the Department to specify the types of
permissible ``different treatment or separation on the basis of sex''
covered by Sec. 106.31(a)(2), including, for example, single-sex
classes and activities, social fraternities or sororities, or sex-
specific appearance codes.
Some commenters urged the Department to specify when subjecting a
person to more than de minimis harm is ``otherwise permitted'' by Title
IX or the regulations to avoid causing ``unfair surprise'' when OCR
enforces the final regulations or ad hoc judgments about when harm may
be implicitly authorized. Some commenters expressed confusion as to
whether and how Sec. 106.31(a)(2) would apply to criteria a recipient
uses to determine a student's eligibility to participate on a male or
female athletic team.
Discussion: With respect to questions about who is covered by Sec.
106.31(a)(2), the Department appreciates the opportunity to clarify
that it applies to any ``person,'' including students, employees,
applicants for admission or employment, and other individuals
participating or attempting to participate in the recipient's education
program or activity, which also could include parents of minor
students, students from other institutions participating in events on a
recipient's campus, visiting lecturers, or other community members whom
the recipient invites to campus.
The Department also appreciates the opportunity to clarify that
Sec. 106.31(a)(2) applies, with some limited exceptions discussed
below, to any circumstances in which a recipient engages in permissible
sex separation or differentiation, such as in its provision of
restrooms and locker rooms (34 CFR 106.33), access to classes and
activities (34 CFR 106.34(a)-(b)), and policies such as appearance
codes (including dress and grooming codes). For additional context on
Title IX's application to appearance codes, see separate discussion
below.
Proposed Sec. 106.31(a)(2) specifies that the prohibition on
subjecting a person to more than de minimis harm does not apply when
``otherwise permitted by Title IX or this part.'' The Department agrees
with commenters that the Department should specify the contexts in
which Title IX or the regulations permit such harm. Section
106.31(a)(2) recognizes that in the limited circumstances in which
recipients are permitted to separate or differentiate on the basis of
sex, recipients must carry out such separation consistent with the
statute's nondiscrimination mandate, 20 U.S.C. 1681, except when the
statute itself allows otherwise. Those contexts are limited to the
enumerated exceptions in 20 U.S.C. 1681(a)(1) through (9) and the
regulatory provisions that implement those statutory provisions, namely
Sec. Sec. 106.12 (religious exemption), 106.13 (military and merchant
marine educational institutions), 106.14 (membership practices of
social fraternities and sororities, YMCA, YWCA, Girl Scouts, Boy Scouts
and Camp Fire Girls, and voluntary youth service organizations); Sec.
106.15(d), (e) (admissions to certain classes of educational
institutions); the provision for living facilities under 20 U.S.C. 1686
and its implementing regulatory provision, Sec. 106.32(b)(1) (sex-
separate housing); and Sec. 106.41(b) (sex-separate athletic teams),
as explained in more detail below. However, even in these limited
contexts where Congress has enumerated exceptions, nothing in the final
regulations prohibits a recipient from voluntarily taking steps to
protect students from sex-based harm, including by permitting them to
participate consistent with their gender identity.
Regarding commenters' questions on sex-separate athletic teams,
Sec. 106.31(a)(2) does not apply to male and female athletic teams a
recipient offers under Sec. 106.41(b). As background, for decades,
recipients' obligations with regard to the operation of athletics in
schools have been governed by an overarching nondiscrimination mandate
and obligation to provide equal athletic opportunities for students
regardless of sex. See 34 CFR 106.41(a), (c). As discussed in the July
2022 NPRM, in 1974 Congress enacted the Javits Amendment, which
directed that the Title IX regulations should include reasonable
provisions that take into account unique considerations that arise in
athletic competition among schools. 87 FR 41538, Education Amendments
of 1974 section 844. In 1975, HEW, the Department's predecessor, first
promulgated regulations under Title IX after multiple congressional
hearings. 87 FR 41393; 121 Cong. Rec. 20467 (1975) (statement of Sen.
Birch Bayh). The regulations were 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 Congress deemed them to be inconsistent with Title
IX. N. Haven Bd. of Educ., 456 U.S. at 531-32. The Supreme Court has
stated that the fact that no such
[[Page 33817]]
disapproval resolution was adopted ``strongly implies that the [Title
IX] regulations accurately reflect congressional intent.'' Grove City
Coll. v. Bell, 465 U.S. 555, 568 (1984); see also N. Haven Bd. of
Educ., 456 U.S. at 533-35.
Consistent with the Javits Amendment and the longstanding athletics
regulations, the Department has historically interpreted Title IX's
nondiscrimination mandate to tolerate sex separation in athletics in a
manner that imposes more than de minimis harm on individual students
when such separation served educational interests consistent with Title
IX's nondiscrimination mandate. See 34 CFR 106.41(b) (permitting
exclusion of a student of a particular sex from a sex-separate athletic
team in certain circumstances, even when student wishes to
participate). Under the longstanding athletics regulations, individual
students may be excluded from a particular male or female athletic team
on the basis of their sex, even when doing so may impose on them more
than de minimis harm, see id., as long as students, regardless of sex,
have an equal opportunity to access the recipient's athletic program as
a whole, see 34 CFR 106.41(c). Consistent with the Javits Amendment,
under Sec. 106.41(c), the Department has also long evaluated a
recipient's provision of equal athletic opportunity on the basis of sex
at a program-wide level, rather than at an individual-level, as the
Department does with respect to other aspects of a recipient's
education program or activity. Compare 34 CFR 106.41(c) (``A recipient
which operates or sponsors interscholastic, intercollegiate, club or
intramural athletics shall provide equal athletic opportunity for
members of both sexes''), with, e.g., 34 CFR 106.21(a) (``No person
shall, on the basis of sex, be denied admission . . . .'').
Consistent with the longstanding athletics regulations, Sec.
106.31(a)(2) does not apply to permissible sex separation of athletic
teams. The Department of Education issued a notice of proposed
rulemaking that would, if finalized, provide a standard for criteria
for a student's eligibility to participate on sex-separate athletic
teams in the future. See Notice of Proposed Rulemaking on
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance: Sex-Related
Eligibility Criteria for Male and Female Athletic Teams, 88 FR 22860
(Apr. 13, 2023) (Athletics NPRM). The Athletics NPRM said a categorical
ban on transgender students playing sports consistent with their gender
identity would not satisfy the proposed regulation, but more targeted
criteria, substantially related to sport, level of competition, and
grade or education level, could be permissible. The Department is
continuing to evaluate comments on that proposed regulation, and will
issue its final rule on this standard for criteria for a student's
eligibility to participate on sex-separate athletic teams in the
future. Until that rule is finalized and issued, the current
regulations on athletics continue to apply.
Changes: To clarify the scope of Sec. 106.31(a)(2), the Department
is replacing ``unless otherwise permitted by Title IX or this part''
with ``except as permitted by 20 U.S.C. 1681(a)(1) through (9) and the
corresponding regulations at Sec. Sec. 106.12through 106.15, 20 U.S.C.
1686 and its corresponding regulation Sec. 106.32(b)(1), or Sec.
106.41(b)''.
3. Participation Consistent With Gender Identity
Comments: Some commenters supported Sec. 106.31(a)(2) because
providing access to sex-separate activities and facilities consistent
with a student's gender identity aligns with Title IX's statutory text
and purpose of ensuring that all students have equal opportunity to
participate in federally funded education programs and activities free
of sex discrimination, as well as case law interpreting Title IX and
other sex discrimination laws.
Other commenters asserted that there is no basis in the statutory
text or case law for the principle that treating a person inconsistent
with their gender identity constitutes sex discrimination. Some
commenters argued that Sec. 106.31(a)(2) effectively eliminates the
sex-based distinctions that Title IX allows. Some commenters noted that
the Supreme Court in Bostock declined to prejudge questions about
``sex-segregated bathrooms, locker rooms, and dress codes'' and did not
address whether treating a person inconsistent with their gender
identity constitutes sex discrimination. 590 U.S. at 681. Other
commenters asserted that Sec. 106.31(a)(2) is at odds with United
States v. Virginia, which recognized that sex-based classifications are
sometimes permissible because certain ``differences between men and
women'' are ``enduring.'' 518 U.S. at 533.
Some commenters argued that Sec. 106.31(a)(2) elevates protections
for transgender students over other students, especially cisgender
girls and women.
Some commenters asked the Department to clarify how a recipient
should determine a person's gender identity for purposes of proposed
Sec. 106.31(a)(2); what medical, procedural or documentation
requirements a recipient can impose on a person prior to permitting
access to sex-separate facilities; and whether a recipient may require
a student to disclose medical records and related information.
Some commenters asked the Department to clarify whether the
prohibition on preventing students from participating consistent with
their gender identity in Sec. 106.31(a)(2) would apply to sex-separate
restrooms, locker rooms, housing, classes or portions of classes, and
academic programs. Many commenters expressed concern about issues such
as competitive fairness and safety in school athletic programs if Sec.
106.31(a)(2) were applied to sex-separate athletic teams. Some
commenters urged the Department to modify the proposed regulations to
require recipients to provide gender-neutral facilities, noting, for
example, that nonbinary students may not be fully accommodated by sex-
separate facilities.
Some commenters said the de minimis harm standard could result in
chilling protected speech both at an individual and group association
level and feared that Sec. 106.31(a)(2) would result in compelling and
restricting speech in violation of the First Amendment.
Some commenters expressed concern about the propriety of students
participating in education programs and activities consistent with
their gender identity. Those commenters suggested that Sec.
106.31(a)(2) would effectively eliminate single-sex spaces and could
compromise some students' privacy and safety. Some commenters urged the
Department to require that all students have access to a single-
occupancy restroom or changing facility, or require transgender
students to use separate facilities. Other commenters argued that
requiring a student to use a separate facility can be stigmatizing and
could result in the disclosure of a student's transgender status. Some
commenters asked whether a recipient or a student organization would
violate Title IX if they offer a transgender person a private
alternative to sex-separate shared spaces, to be sensitive to their
needs or preferences.
Some commenters noted that Sec. 106.31(a)(2) is consistent with
case law concluding that denying a student access to a recipient's
education program or activity, including extracurricular activities or
facilities, consistent with their gender identity causes students harm
in violation of
[[Page 33818]]
Title IX. Some commenters asserted that preventing students from
participating in school consistent with their gender identity causes
more than de minimis harm and stated that many transgender students
avoid school bathrooms or other sex-separate spaces at school because
they do not feel safe using them. Some commenters argued that
permitting students to participate in school consistent with their
gender identity positively impacts their mental health and improves
educational outcomes and noted that major organizations representing
medical professionals support such policies. Other commenters argued
that affirming a gender identity different than a person's sex assigned
at birth could do more harm than good, particularly for young children.
These commenters asserted that school policies that accept students'
requests to treat them consistent with a gender identity that does not
align with their sex assigned at birth are harmful.
Commenters asked the Department to clarify whether proposed Sec.
106.31(a)(2) requires recipients to allow students to live in sex-
separate housing consistent with gender identity. Some commenters felt
that the Department's interpretation of 20 U.S.C. 1686 in the July 2022
NPRM--to permit sex separation in living facilities even when it causes
more than de minimis harm--would conflict with Grimm's analysis and
Title IX's statutory text. Commenters also asked how proposed Sec.
106.31(a)(2) applies in the context of random roommate assignment
programs for students.
Some commenters argued that provisions permitting separation by
``sex'' should be interpreted to focus on physiological differences
between males and females to align with contemporary dictionary
definitions and courts' understanding of the term. Commenters noted
that the original Title IX rulemaking did not mention ``gender
identity,'' and asserted that the current regulations permitting
separation by sex (e.g., bathrooms, locker rooms, and athletic teams)
assume ``sex'' is limited to sex assigned at birth. One commenter
argued that Sec. 106.31(a)(2)'s focus on gender identity undermines
the Department's statement in the July 2022 NPRM that Title IX does not
depend on any particular definition of the term ``sex.'' Some
commenters said that separating locker rooms, bathrooms, and shower
facilities by sex assigned at birth is authorized by 20 U.S.C. 1686,
citing Adams, 57 F.4th 791.
Discussion: The Department disagrees with commenters who assert
that Sec. 106.31(a)(2)'s articulation of a recipient's
nondiscrimination obligation with respect to gender identity is
inconsistent with Title IX. As explained in the July 2022 NPRM, see 87
FR 41535, courts have recognized that, except as otherwise provided in
the statute, Title IX prohibits all sex discrimination, including
gender identity discrimination in federally funded education programs
and activities, and that students experience sex-based harm that
violates Title IX when a recipient bars them from accessing 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 in violation of Title IX); 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 sex-based harm prohibited
under Title IX); Bd. of Educ. Of the Highland Loc. Sch. Dist., 208 F.
Supp. 3d at 870-71 (describing stigma and isolation and interference
with learning caused by district's exclusion of transgender girl from a
sex-separate education program or activity consistent with her gender
identity and concluding that such harm is sufficient to demonstrate a
Title IX violation).
The Department disagrees that Sec. 106.31(a)(2) is inconsistent
with Supreme Court precedent, including Bostock and Virginia. 87 FR
41532. Under Bostock, treating a person worse because their sex
assigned at birth differs from their gender identity is sex
discrimination under Title IX, just as it is under Title VII. 87 FR
41532 (citing Bostock, 590 U.S. at 659-62). Bostock, however, did not
purport to address the specific question of whether sex separation in
bathrooms or locker rooms ``might not qualify as unlawful
discrimination or find justifications under other provisions'' of the
law, 140 S. Ct. at 1753, which is the question the Department addresses
here with respect to Title IX.
The Department has determined, based on a careful reading of Title
IX and each of its statutory provisions, that sex separation in certain
circumstances, including in the context of bathrooms or locker rooms,
is not presumptively unlawful sex discrimination. However, when such
separation imposes more than de minimis injury on a protected
individual, see Bostock, 590 U.S. at 681, such as when it denies a
transgender student access to a sex-separate facility or activity
consistent with that student's gender identity, this would violate
Title IX's general nondiscrimination mandate, 20 U.S.C. 1681. The
Department recognizes, however, that the statute created exceptions to
that general nondiscrimination mandate in 20 U.S.C. 1681(a)(1)-(9), and
also carved out from its general nondiscrimination mandate the
maintenance of sex-separate living facilities in 20 U.S.C. 1686; and
Congress further recognized that the unique circumstances of athletics
also merit a different approach to addressing sex discrimination in
that context, as reflected in the Department's promulgation of
Sec. Sec. 106.41(b) and (c). Therefore, as explained above and in the
July 2022 NPRM, the Department interprets those provisions to mean
that, in those contexts, recipients may carry out sex-specific policies
and practices in a manner that may cause more than de minimis harm to a
protected individual. 87 FR 41536.
Title IX protects students from sex discrimination, including sex-
based harassment, in a recipient's education program or activity,
including when they access sex-separate facilities. This protection
applies with equal force to all students, including transgender and
nonbinary students. Under Sec. 106.31(a)(2), a recipient must provide
access to sex-separate facilities, including bathrooms, in a manner
that does not cause more than de minimis harm. Title IX also prohibits
sex-based harassment, including when students access sex-separate
facilities. Section 106.31(a)(2) does not specify how a recipient must
provide access to sex-separate facilities for students who do not
identify as male or female. For nonbinary students, a recipient may,
for example, coordinate with the student, and the student's parent or
guardian as appropriate, to determine how to best provide the student
with safe and nondiscriminatory access to facilities, as required by
Title IX. Under Sec. 106.44(a), a recipient must respond promptly and
effectively when it knows of conduct that reasonably may constitute sex
discrimination, including sex-based harassment, in its education
program or activity, including in any sex-separate facilities.
The Department disagrees with commenters who argued that this
interpretation of Title IX is inconsistent with the Supreme Court's
recognition in Virginia that physiological differences can sometimes
justify sex-based classifications. Title IX's statutory
[[Page 33819]]
prohibition on sex discrimination is ``narrower in some respects and
broader in others'' than the substantive rights and protections
guaranteed under the Equal Protection Clause. Fitzgerald v. Barnstable
Sch. Comm., 555 U.S. 246, 256 (2009). Thus, although equal protection
case law may inform the Department's interpretation, the Department
does not read Virginia as opining on the scope of Title IX's statutory
exceptions. But some lessons from Virginia are instructive in the Title
IX context. For instance, Virginia recognized that, unlike in the
context of race or national origin classifications, some sex-based
classifications may be constitutionally permissible because of enduring
physical differences between the sexes. Virginia, 518 U.S. at 533. Like
Virginia, Sec. 106.31(a)(2) acknowledges that there are circumstances
in which sex differentiation is not presumptively discriminatory.
Nonetheless, Virginia goes on to hold that reliance on these
generalized differences alone cannot substantiate a categorical sex-
based exclusion from an education program under the Equal Protection
Clause. 518 U.S. at 533. To do so would be to rely on the ``notably
circular argument'' that separation on the basis of sex can serve as
both an institution's discriminatory means and its justifiable end
under the intermediate scrutiny analysis. See id. at 544-45 (``Virginia
and VMI trained their argument on `means' rather than `end,' and thus
misperceived our precedent.'').
The Department also disagrees that Sec. 106.31(a)(2) eliminates
the sex-based distinctions permitted by Title IX. As explained in the
July 2022 NPRM, the Department recognizes that Title IX does not treat
all sex-based distinctions as impermissible discrimination. 87 FR
41534. The Department's regulations have always recognized that
recipients can separate students on the basis of sex in contexts where
separation is generally not harmful, and Sec. 106.31(a)(2) does not
change that. However, consistent with Supreme Court precedent and Title
IX's general nondiscrimination mandate, Sec. 106.31(a)(2) clarifies
that when such otherwise permissible sex separation causes more than de
minimis harm to a protected individual--and the harm is not otherwise
permitted by Title IX--such harm cannot be justified or otherwise
rendered nondiscriminatory merely by pointing to the fact that, in
general, there are physical differences between the sexes.
Section 106.31(a)(2)'s prohibition on preventing students from
participating consistent with their gender identity applies to any
circumstance in which a recipient engages in permissible sex separation
or differentiation, except when more than de minimis harm is permitted
by the statute. For example, the text of Sec. 106.31(a)(2) makes clear
that it does not apply to sex-separate athletic teams permitted under
34 CFR 106.41(b). As noted above, Congress made clear that the Title IX
regulations should reflect the fact that athletic competition raises
unique considerations and the Department's regulations have always
permitted more than de minimis harm to individual students in the
context of sex-separate athletic teams. On the other hand, Sec.
106.31(a)(2) applies in contexts for which there is no statutory
exception, such as sex-separate restrooms and locker rooms under Sec.
106.33, and single-sex classes or portions of classes under Sec.
106.34(a) and (b). The Department has always treated access to
facilities and classes differently than athletics. Classes, for
example, focus on learning skills and competencies and do not raise the
unique issues that are present in sex-separate interscholastic or
intercollegiate athletic competition. As explained in more detail
below, a recipient can address any concerns about the application of
Sec. 106.31(a)(2) to contexts like classes and facilities without
preventing students from participating consistent with their gender
identity.
With respect to concerns that the ``de minimis harm'' standard will
chill or otherwise limit protected speech, the Department reiterates
that Sec. 106.31(a)(2) generally prohibits a recipient from preventing
a person from participating in school consistent with their gender
identity. The provision does not in any way limit Sec. 106.6(d), which
states that nothing in the Title IX regulations requires a recipient to
restrict any rights that would otherwise be protected from government
action by the First Amendment; deprive a person of any rights that
would otherwise be protected from government action under the Due
Process Clauses of the Fifth and Fourteenth Amendments; or restrict any
other rights guaranteed against government action by the United States
Constitution. The Department reaffirms that a recipient may not invoke
Title IX to require restricting speech, expression, or conduct in
violation of the First Amendment. Similarly, the Department also
underscores that none of the amendments to the regulations change or
are intended to change the commitment of the Department, through these
regulations and OCR's administrative enforcement, to fulfill its
obligations in a manner that is fully consistent with the First
Amendment and other guarantees of the Constitution of the United
States. For additional information regarding Title IX and the First
Amendment, see the discussion of Hostile Environment Sex-Based
Harassment--First Amendment Considerations (Sec. 106.2).
With respect to commenters' questions about how a recipient should
determine a person's gender identity for purposes of Sec.
106.31(a)(2), the Department is aware that many recipients rely on a
student's consistent assertion to determine their gender identity, or
on written confirmation of the student's gender identity by the student
or student's parent, counselor, coach, or teacher. However, requiring a
student to submit to invasive medical inquiries or burdensome
documentation requirements to participate in a recipient's education
program or activity consistent with their gender identity imposes more
than de minimis harm. In particular, a recipient may not require a
person to provide documentation (such as an amended birth certificate
or evidence of medical treatment) to validate their gender identity for
purposes of compliance with Sec. 106.31(a)(2) if access to such
documentation is prohibited by law in that jurisdiction.
The Department agrees with commenters who noted the substantial
harm transgender students experience when they are excluded from a sex-
separate facility consistent with their gender identity, and Sec.
106.31(a)(2) properly accounts for such harm. As detailed in the July
2022 NPRM, several Federal courts have found that excluding students
from sex-separate facilities and activities consistent with their
gender identity can impose significant harm on those students' mental
health and overall well-being. 87 FR 41535. These findings are
consistent with the guidelines published by well-established medical
organizations, which say being able to live consistent with one's
gender identity is critical to the health and well-being of transgender
youth.\90\ To the extent there are also harms associated with being
treated consistent with a gender identity that
[[Page 33820]]
differs from one's sex assigned at birth, individuals (and their
parents, as appropriate) are better positioned to weigh any harms and
benefits for themselves than is an educational institution. Section
106.31(a)(2) therefore simply prohibits a recipient from 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 when that person seeks to participate
consistent with their gender identity.
---------------------------------------------------------------------------
\90\ See World Professional Association for Transgender Health,
Standards of Care for the Health of Transgender and Gender Diverse
People, Version 8, 23 Int'l J. Transgender Health S1 (2022); Jason
Rafferty et al., Am. Acad. of Pediatrics, Ensuring Comprehensive
Care and Support for Transgender and Gender Diverse Children and
Adolescents 142 Pediatrics 72 (2018); Tanya Albert Henry,
Exclusionary Bathroom Policies Harm Transgender Students, American
Medical Association (Apr. 17, 2019), https://www.ama-assn.org/delivering-care/population-care/exclusionary-bathroom-policies-harm-transgender-students.
---------------------------------------------------------------------------
The Department disagrees that prohibiting more than de minimis harm
in the context of sex-separate bathrooms and locker rooms would result
in the elimination of the sex-based separation that Title IX allows in
this context. Recipients continue to have discretion under these
regulations to provide sex-separate facilities consistent with Title
IX's nondiscrimination mandate; making Title IX's protections against
sex-based harms explicit does not change that.
The Department also disagrees that Sec. 106.31(a)(2) elevates
protections for transgender students over cisgender students. The
application of Sec. 106.31(a)(2) is not limited to transgender
students--and indeed protects all students from harm when a recipient
separates or treats students differently based on sex. As explained in
more detail above, Sec. 106.31(a)(2) recognizes that students
experience sex-based harm when they are excluded from sex-separate
facilities consistent with their gender identity. However, based on the
Department's enforcement experience, listening sessions with
stakeholders, and its review of Federal case law, the Department is
unaware of instances in which cisgender students excluded from
facilities inconsistent with their gender identity have experienced the
harms transgender students experience as a result of exclusion from
facilities consistent with their gender identity.
While the Department strongly agrees that recipients have a
legitimate interest in protecting all students' safety and privacy, we
disagree that such goals are inconsistent with Sec. 106.31(a)(2). As
noted in the July 2022 NPRM, a recipient can make and enforce rules
that protect all students' safety and privacy without also excluding
transgender students from accessing sex-separate facilities and
activities consistent with their gender identity. 87 FR 41535; see
also, 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. The Department disagrees that it has disregarded potential
harms to cisgender students.
The Department does not agree with commenters who alleged there is
evidence that transgender students pose a safety risk to cisgender
students, or that the mere presence of a transgender person in a
single-sex space compromises anyone's legitimate privacy interest. In
many cases, Federal courts have rejected claims that treating students
consistent with their gender identity necessarily harms cisgender
students in violation of Title IX. For example, when plaintiffs have
asserted only unsubstantiated and generalized concerns that transgender
persons' access to sex-separate spaces infringes on other students'
privacy or safety, courts have rejected those claims. See, e.g., Grimm,
972 F.3d at 626 (Wynn, J., concurring); 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); Boyertown, 897 F.3d at 521 (same);
Parents for Priv., 949 F.3d at 1228-29 (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 a transgender woman's mere
presence in a sex-separate space did not constitute actionable sexual
harassment of her women co-workers). The Supreme Court 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).
The Department also appreciates the opportunity to clarify that
nothing in Title IX or the final regulations prevents a recipient from
offering single-occupancy facilities, among other accommodations, to
any students who seek additional privacy for any reason. The Department
agrees with commenters that access to gender-neutral or single-
occupancy facilities may be helpful for accommodating students who do
not want to use shared sex-separate facilities. The Department declines
the suggestion to require that recipients provide gender-neutral or
single-occupancy facilities because such facilities are not the only
way a recipient could provide nondiscriminatory access to its
facilities. In addition, the proposal would likely carry significant
cost implications and it would be appropriate to seek public comment on
this issue before making any such changes. Additionally, nothing in
Sec. 106.31(a)(2) prohibits recipients from taking nondiscriminatory
steps to ensure privacy and safety for all students in a recipient's
sex-separate facilities--steps that many recipients already take
consistent with their general codes of conduct, including rules
prohibiting harassment, assault, and other forms of misconduct.
The Department has previously made clear that all students are
protected from sex discrimination under Title IX, and that a recipient
generally must treat transgender students consistent with their gender
identity with respect to their participation in single-sex classes and
activities. See U.S. Dept 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), https://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf. The Department recognizes that Sec. 106.31(a)(2)
interprets Title IX differently from the 2021 Rubinstein Memorandum.
The Department explained in detail in the July 2022 NPRM why it
disagreed with the reasoning in that archived memorandum. See 87 FR
41536-37. The Rubinstein Memorandum's suggestion that Title IX requires
separation according to sex assigned at birth or that treating a
student inconsistent with their gender identity does not implicate
Title IX is at odds with Title IX's text and purpose and the reasoning
of the courts that had considered the issue. The Department reiterates
that Sec. 106.31(a)(2) is consistent with Federal case law on this
point, see, e.g., Metro. Sch. Dist. of Martinsville, 75 F.4th 760;
Grimm, 972 F.3d 586; Whitaker, 858 F.3d 1034, and to the extent some
courts have come to a different conclusion, see, e.g., Adams, 57 F.4th
791; Bridge v. Okla. State Dep't of Educ., No. CIV-22-00787, 2024 WL
150598, at *8 (W.D. Okla. Jan. 12, 2024); Roe v. Critchfield, No. 1:23-
cv-00315, 2023 WL 6690596, at *1 (D. Idaho Oct. 12, 2023), the
Department does not agree with those courts' interpretation of Title IX
for the reasons that follow.
For example, in Adams, the Eleventh Circuit held that a school
district policy preventing a transgender boy from using the boys'
restroom did not violate Title IX because the Court determined that
``sex'' as used in Title IX can only refer to ``biology and
reproductive function,'' not gender identity, 57 F.4th at 812-15, and
that restrooms are covered by a statutory provision permitting a
recipient to maintain ``separate living
[[Page 33821]]
facilities for the different sexes,'' id. at 812-15 (quoting 20 U.S.C.
1686). The Department determined that it is not necessary to resolve
the question of what ``sex'' means in Title IX for the Department to
conclude that no statutory provision permits a recipient to
discriminate against students--i.e., to subject them to more than de
minimis harm--in the context of maintaining certain sex-separate
facilities or activities. In particular, contrary to the reasoning in
Adams, even if ``sex'' under Title IX were to mean only sex assigned at
birth, Title IX's ``living facilities'' provision, does not permit a
recipient to subject a person to more than de minimis harm on that
basis in any context except living facilities. As explained in the July
2022 NPRM, 20 U.S.C. 1686 specifically carves out from Title IX's
general statutory prohibition on sex discrimination an allowance for
recipients to maintain sex-separate living facilities. 87 FR 41536; 20
U.S.C. 1686 (``Notwithstanding anything to the contrary contained in
[Title IX],'' nothing in Title IX ``shall be construed to prohibit any
educational institution . . . from maintaining separate living
facilities for the different sexes.''). And it provides the statutory
basis for the Department's housing provision at Sec. 106.32(b)(1). But
that carve-out does not apply to the remainder of Sec. 106.32 or to
any other aspects of a recipient's education program or activity for
which Title IX permits different treatment or separation on the basis
of sex, such as bathrooms, locker rooms, or shower facilities--
regulations that the Department adopted under different statutory
authority, and which have long been addressed separately from ``living
facilities.'' The Department notes that when HEW adopted the original
Title IX regulations, it cited section 907 of the Education Amendments
(20 U.S.C. 1686) as one of the sources of its statutory authority for
the housing provision, 40 FR 24141 (codified at 45 CFR 86.32 (1975)),
whereas it cited only sections 901 and 902 of the Education Amendments
(20 U.S.C. 1681-1682) as its statutory authority for the provision
governing toilet, locker room, and shower facilities, 40 FR 24141
(codified at 45 CFR 86.33 (1975)), and the Department of Education
retained those authorities when it adopted its own Title IX regulations
in 1980. 45 FR 30955 (May 9, 1980) (codified at 34 CFR 106.32 and
106.33). As the statutory sources cited in the text of the regulations
themselves demonstrate, a recipient's provision of separate bathrooms
and locker rooms is governed not by 20 U.S.C. 1686, but by the
statute's general nondiscrimination mandate, 20 U.S.C. 1681. And Sec.
106.33 ``cannot override the statutory prohibition against
discrimination on the basis of sex.'' Grimm, 972 F.3d at 618 (emphasis
in the original). The Adams' court's reasoning therefore cannot be
reconciled with Title IX's plain text and ignores that Congress could
have, but did not, address anything other than the practice of
maintaining sex-separate ``living facilities'' in 20 U.S.C. 1686. See
87 FR 41536 (``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.''). The Department therefore
declines to adopt the Eleventh Circuit's reasoning in Adams that the
statutory carve out for living facilities governs the interpretation of
Sec. 106.33, the Department's regulations on bathrooms and locker
rooms, or any other regulatory provision other than housing, 34 CFR
106.32(b)(1).
With respect to commenters' questions about whether Sec.
106.31(a)(2) prohibits a recipient from excluding students from sex-
separate housing consistent with their gender identity, it does not,
because of the express carve-out for sex-separate living facilities
under 20 U.S.C. 1686. But that is the extent of the reach of 20 U.S.C.
1686, and nothing in the statute or final regulations precludes a
recipient from voluntarily choosing to adopt policies that enable
transgender students to access sex-separate housing consistent with
their gender identity.
Changes: None.
4. Parental Rights
Comments: Some commenters expressed concern that proposed Sec.
106.31(a)(2) would prevent schools from respecting a parent's wishes
regarding how their child should be treated and urged the Department to
clarify parental rights in this context. Some commenters asserted that
in most cases parents should make important decisions about their
children's health and well-being, that parents are best situated to act
in the best interests of their children, and that parents have a right
to ``direct the upbringing and education of children under their
control,'' citing Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35
(1925).
Some commenters raised questions about matters related to gender
identity, including whether a recipient should comply with a request by
a minor student to change their name or pronouns used at school if
their parent opposes the change and whether the proposed regulations
would lead to claims that a parent is mistreating a child if the parent
does not affirm the child's gender identity.
Commenters also asked the Department to clarify whether it would be
a potential violation of Title IX for a recipient to treat a student
according to their sex assigned at birth if requested by the parents to
do so; notify a student's parents of the student's gender transition or
gender identity; or to deny parents access to their child's educational
records, including information about their child's gender identity.
Some commenters urged the Department to amend the regulations to
expressly provide that a minor student's parents must be consulted
before a school could begin treating a student consistent with a
different gender identity.
Some commenters expressed concern that proposed Sec. 106.31(a)(2)
would conflict with State laws, like Florida's Parental Rights in
Education Act, HB 1557. Some commenters asserted that proposed Sec.
106.31(a)(2) would affect the content of a recipient's curricula and
override claimed parental rights over curricula. Some commenters
worried that a school board could feel pressured to include information
about gender identity in the curriculum to avoid a Title IX violation
and to use Title IX to justify denying parental opt-outs from lessons
on gender identity.
Some commenters argued that because the proposed regulations define
``parental status'' to include a person acting ``in loco parentis,'' a
school district employee could act in place of a student's parent,
including regarding the student's gender identity.
Discussion: The Department acknowledges and respects the rights of
parents and their fundamental role in raising their children. The
Department appreciates the opportunity to clarify that nothing in the
final regulations disturbs parental rights, and accordingly the
Department determined that additional regulatory text regarding
parental rights is not necessary to effectuate Title IX's prohibition
on sex discrimination.
Indeed, as explained in the discussion of Sec. 106.6(g), that
provision reinforces the right of a parent to act on behalf of their
minor child, whether their child is a complainant, respondent, or other
person. Under Sec. 106.6(g), nothing in Title IX or the final
regulations may be read in derogation of any legal right of a parent,
guardian, or other authorized legal representative to act on behalf of
a minor child, including but not limited to making a complaint through
the
[[Page 33822]]
recipient's grievance procedures for complaints of sex discrimination.
When a parent and minor student disagree about how to address sex
discrimination against that student, deference to the judgment of a
parent, guardian, or other authorized legal representative with a legal
right to act on behalf of that student is appropriate.
Further, nothing in these final regulations prevents a recipient
from disclosing information about a minor child to their parent who has
the legal right to receive disclosures on behalf of their child. For
additional explanation of the final regulations' application to
disclosure of information to parents of minor children, see the
discussions of Sec. Sec. 106.44(j) (Section II.B) and 106.6(g)
(Section I.F).
Although the hypothetical factual scenarios raised by commenters
require case-by-case determinations, the Department reiterates that
nothing in the final regulations restricts any right of a parent to act
on behalf of a minor child or requires withholding of information about
a minor child from their parents. See Sec. Sec. 106.44(j)(2),
106.6(g). A recipient can coordinate with a minor student and their
parent, as appropriate, to ensure sex discrimination does not interfere
with the student's equal access to its education program or activity.
The Department declines to opine on how Sec. 106.31(a)(2)
interacts or conflicts with any specific State laws because it would
require a fact-specific analysis, but refers the public to Sec.
106.6(b), which affirms that a recipient's obligation to comply with
Title IX and the regulations is not obviated or alleviated by any State
or local law.
In response to comments regarding curricula, the Department does
not have the authority to regulate curricula and reiterates that these
final regulations do not regulate curricula or interfere with any
asserted parental right to be involved in recipients' choices regarding
curricula or instructional materials. The explicit regulatory
limitation on the Department regulating curricular materials under
Title IX remains unchanged: ``Nothing in this regulation shall be
interpreted as requiring or prohibiting or abridging in any way the use
of particular textbooks or curricular materials.'' 34 CFR 106.42.
In response to the comments regarding the inclusion of ``in loco
parentis'' in the definition of ``parental status,'' the Department
appreciates the opportunity to clarify that the definition is limited
to the context of Sec. Sec. 106.21(c)(2)(i), 106.37(a)(3), 106.40(a),
and 106.57(a)(1), which prohibit sex discrimination related to the
parental status of students, employees, and applicants for admission or
employment (e.g., treating mothers more or less favorably than
fathers). This definition does not affect the rights or status of a
student's parents, authorize a recipient to act in the place of
parents, or diminish parental rights. The Department further clarifies
that the definition of ``parental status'' does not relate to parental
rights under Sec. 106.6(g) and does not bestow parental authority on
any person. See discussion of the definition of ``parental status'' in
Sec. 106.2 (Section III).
Changes: None.
5. Intersection With Health Care
Comments: Some commenters expressed concern that proposed Sec.
106.31(a)(2) could set a new medical standard of care by virtue of
Title IX's application to campus health centers, teaching hospitals,
and school nurses' offices. Specifically, commenters raised concerns
about whether Sec. 106.31(a)(2) would require a recipient to provide
gender-affirming care.
Commenters urged the Department to exclude minor children from any
``mandates'' concerning gender transition procedures or prohibit a
recipient from treating gender dysphoria in a minor student without
parental involvement. One commenter suggested the Department should
require rigorous gatekeeping procedures before medical interventions.
Another commenter asserted that Sec. 106.31(a)(2) would coerce
health care providers' medical care and speech and require providers to
treat gender dysphoria in ways to which they have medical, ethical, or
religious objections. Some commenters argued that Sec. 106.31(a)(2)'s
effect on health care violates the Religious Freedom Restoration Act,
42 U.S.C. 2000bb-1 (RFRA), and the First Amendment's Free Speech and
Free Exercise of Religion Clauses.
Another commenter asked the Department to jointly consider the
impact of the proposed regulations with the impact of the regulations
proposed by the U.S. Department of Health and Human Services (HHS) for
Section 1557.
Discussion: Title IX applies to recipients of Federal funding that
operate an ``education program or activity.'' 20 U.S.C. 1681(a). When a
recipient is an educational institution, all of its operations are
considered covered by Title IX. See Public Law 100-259, 102 Stat. 28
(Mar. 22, 1988) (codified at 20 U.S.C. 1687); U.S. Dep't of Justice,
Title IX Legal Manual at III.C, https://www.justice.gov/crt/title-ix
(last visited Mar. 12, 2024) (``In the context of traditional
educational institutions, it is well established that the covered
education program or activity encompasses all of the educational
institution's operations including, but not limited to, `traditional
educational operations, faculty and student housing, campus shuttle bus
service, campus restaurants, the bookstore, and other commercial
activities.''' (footnote omitted) (citing S. Rep. No. 64 at 17,
reprinted in 1988 U.S.C.C.A.N. at 19)). Thus, for example, when a
federally funded educational institution operates a health center or
nurses' office, those centers and offices are part of the institution's
``education program or activity'' and are subject to the Department's
Title IX regulations. For recipients that are not educational
institutions, the Department's Title IX regulations apply only to any
education program or activity operated by such entities.
The Department's Title IX regulations do not (and cannot) promote
any particular medical treatment, require provision of particular
medical procedures, or set any standard of care. As such, these
regulations do not interfere with providers' exercise of their
professional medical judgment. Rather, these regulations implement the
nondiscrimination requirements of Title IX.
Section 1557, 42 U.S.C. 18116, prohibits discrimination on the
basis of race, color, national origin, sex, age, and disability in a
range of health programs and activities. While we appreciate that some
recipients may be covered under both the Department's Title IX
regulations and HHS' Section 1557 regulations, the Section 1557
rulemaking undertaken by HHS is outside of the scope of the
Department's Title IX rulemaking. It is the Department's practice to
collaborate with other Federal agencies when there may be overlapping
civil rights jurisdiction, and we are committed to continuing such
collaboration should it arise in the context of these two sets of
regulations. The Department will provide technical assistance in the
future, as appropriate.
Further, as stated in Sec. 106.6(d), nothing in these regulations
requires a recipient to restrict rights protected under the First
Amendment or any other rights guaranteed against government action
under the U.S. Constitution. The Department likewise interprets and
applies its regulations consistent with RFRA and Title IX's exemption
for educational institutions controlled by religious organizations.
Changes: None.
[[Page 33823]]
6. Intersection With Individuals' Religious Beliefs
Comments: Commenters raised concerns regarding the application of
proposed Sec. Sec. 106.10 and 106.31(a)(2) to institutions and
individuals when compliance with such provisions would violate their
religious beliefs.
Some commenters raised specific concerns regarding the application
of the religious exemption in Title IX, with some asserting that
Sec. Sec. 106.10 and 106.31(a)(2) would not apply when the provisions
would conflict with the religious tenets of an organization. Other
commenters suggested further clarification around the religious
exemption in Title IX and posed specific hypotheticals for the
Department to address and affirm as falling within the religious
exemption. Some commenters raised concerns that persons of faith
attending or employed by non-religious schools or religious schools are
unable to invoke the religious exemption. One commenter argued that
declining to consider the need of such persons to freely exercise their
faith would be arbitrary and capricious.
Some commenters expressed concern that requirements under Sec.
106.31(a)(2) would potentially interfere with their constitutionally
protected free speech and free exercise rights under the First
Amendment. Commenters further asserted that proposed Sec. 106.31(a)(2)
would prohibit persons with traditional religious views of family and
sexuality from exercising their constitutionally protected free speech
and free exercise rights. One commenter also expressed concerns that
the proposed regulations would compel faculty, staff, and students to
speak in particular ways about sexual orientation and gender identity
that may conflict with their religious beliefs, citing Vlaming v. W.
Point Sch. Bd., 10 F.4th 300, 304 (4th Cir. 2021). One commenter also
asserted that these provisions would conflict with RFRA, insofar as
these provisions apply to non-exempt religious schools or insofar as
they require individual religious teachers, students, and visitors at
secular schools to violate their religious beliefs.
Some commenters urged the Department to clarify that free speech
and religious liberty protections extend to recipients and individuals
and that such protections will not be altered or abridged through the
final regulations or future Department guidance or practice.
Discussion: The Department is committed to enforcing Title IX
consistent with all applicable free speech and religious liberty
protections.
With respect to religious educational institutions, the Department
agrees with commenters that Sec. Sec. 106.10 and 106.31(a)(2) do not
apply to an educational institution that is controlled by a religious
organization to the extent that the provisions' application would not
be consistent with the religious tenets of such organization. 20 U.S.C.
1681(a)(3). If an institution wishes to claim an exemption, its
highest-ranking official may submit a written statement to the
Assistant Secretary for Civil Rights, identifying the provisions of
Title IX that conflict with a specific tenet of the controlling
religious organization. 34 CFR 106.12(b).
The Department notes that that the religious exemption in Title IX
applies to an ``educational institution'' or other ``entity' that is
controlled by a religious organization, 20 U.S.C. 1681(a)(3); 1687(4);
it does not address an individual student or employee's exercise of
their religious beliefs. As commenters also noted, however, RFRA
provides that the Federal government ``shall not substantially burden a
person's exercise of religion'' unless the government ``demonstrates
that application of the burden to the person . . . is in furtherance of
a compelling governmental interest; and . . . is the least restrictive
means of furthering that compelling governmental interest.'' 42 U.S.C.
2000bb-1.
The Department cannot opine on how RFRA might be applied in
particular situations, including in hypotheticals suggested by
commenters, because determinations about whether the application of
Title IX in a particular context substantially burdens a person's
exercise of religion would necessarily depend on the circumstances at
hand. The Department, however, must abide by RFRA, and OCR considers
RFRA's requirements when it evaluates a recipient's compliance with
Title IX. An individual may also inform the Department of a burden or
potential burden under RFRA by sending an email to [email protected]. The
Department's Office of the General Counsel, in consultation with other
Department offices or Federal agencies when appropriate, will determine
whether further investigation is warranted.
With regard to commenters' concerns related to the Free Speech and
Free Exercise Clauses of the First Amendment, Sec. 106.6(d) explicitly
states that nothing in the regulations requires a recipient to restrict
rights protected under the First Amendment or other constitutional
provisions. The Department, likewise, must act in accordance with the
U.S. Constitution.
Changes: None.
7. Appearance Codes
Comments: Some commenters urged the Department to clarify how Title
IX and the final regulations apply to sex-specific appearance codes,
including dress and grooming codes. Some commenters urged the
Department to clarify whether and how sex-specific appearance codes
violate Title IX and how the final regulations' prohibition in Sec.
106.31(a)(2) on separating or treating students differently based on
sex in a manner that causes more than de minimis harm applies in this
context.
Commenters said that appearance codes with sex-specific
requirements perpetuate sex stereotypes and contribute to sex
discrimination, including sex-based harassment. Some commenters
explained that dress and appearance codes are enforced
disproportionately against girls and LGBTQI+ students and often
restrict common Black protective hairstyles like braids, locs, hair
wraps, Bantu knots, and bandanas or impose hair length requirements on
students for whom wearing long hair may be an important part of their
identity, including Indigenous students, Sikh students, and others.
Some commenters stated that the Department should restore and
update the dress code provision in the original 1975 Title IX
regulations that was rescinded in 1982. One commenter stated that the
absence of a provision regarding dress codes has led many school boards
and school administrators to believe that Title IX does not cover dress
codes. This commenter asked the Department to provide guidance or
additional regulations making clear that dress and appearance codes
that include sex-based distinctions, either on their face or as
enforced, are subject to Title IX. Commenters also noted that the
Fourth Circuit recently held that Title IX applies to dress codes.
Peltier, 37 F.4th at 128.
Some commenters asked the Department to offer examples of how sex-
specific dress and appearance codes could violate Title IX, including
with respect to sex-specific hair length requirements for boys and
girls, and asked whether a sex-specific appearance code could violate
the right of any students, including cisgender and transgender
students.
Discussion: The Department appreciates the opportunity to clarify
that sex-specific appearance codes, including sex-specific dress and
grooming codes, are subject to Title IX and Sec. 106.31(a)(2) of the
final regulations. Thus, under Sec. 106.31(a)(2),
[[Page 33824]]
a recipient may adopt an appearance code with some sex-based
distinctions to the extent those distinctions do not cause more than de
minimis harm. For example, some sex-based distinctions may be
appropriate in the protective gear or uniforms a recipient expects
students to wear when participating in certain physical education
classes or athletic teams. On the other hand, imposing different
restrictions on how boys and girls dress or appear would violate Title
IX if the sex-specific restriction causes students more than de minimis
harm under Sec. 106.31(a)(2). See, e.g., Peltier, 37 F.4th at 130;
discussions of de minimis harm standard (below and Section IV.B.1).
Although the Title IX regulations no longer include a provision
explicitly addressing appearance codes as they did from 1975 until
1982, neither the Title IX statute nor the regulations contain an
exception that would permit a recipient to discriminate on the basis of
sex in the context of appearance codes. However, in light of comments
the Department received, the Department understands the need to clarify
its view of the final regulations' application to sex discrimination in
the context of appearance codes.
In addition to several of the specific prohibitions in what is now
Sec. 106.31(b), the Title IX regulations that HEW originally issued in
1975 also included a specific prohibition on ``[d]iscrimination against
any person in the application of any rules of appearance.'' 40 FR 24128
(codified at 45 CFR 86.31(b)(5) (1975)). In 1982, the Department
removed this specific prohibition from its Title IX regulations. The
corresponding Federal Register notice offered three reasons for the
removal: (1) to permit the Department ``to concentrate its resources on
cases involving more serious allegations of sex discrimination''; (2)
because ``[d]evelopment and enforcement of appearance codes is an issue
for local determination''; and (3) because allegedly there was ``no
indication in the legislative history of Title IX that Congress
intended to authorize Federal regulations in the area of appearance
codes.'' U.S. Dep't of Educ., Nondiscrimination on the Basis of Sex in
Education Programs and Activities Receiving or Benefiting from Federal
Financial Assistance, 47 FR 32526, 32526-27 (July 28, 1982).
The Department notes that the third reason offered in the July 1982
notice was materially incomplete. Although the legislative history
preceding enactment of Title IX in 1972 may not have included any
discussion of appearance codes, it also did not suggest that such codes
would be treated differently from other sex-based rules of student
behavior and sex-based treatment of students. And although some
witnesses at congressional hearings to review HEW's proposed rules in
1975 criticized the proposed regulations' prohibition on discrimination
in appearance codes (and some witnesses praised it), see Hearings
Before the Subcomm. on Postsecondary Educ. of the Comm. on Educ. and
Labor in the H.R., Review of Regulations to Implement Title IX of
Public Law 92-318 Conducted Pursuant to Sec. 431 of the Gen. Educ.
Provisions Act, 94th Cong. 239, 250, 252, 362, 374, 450, 514-15, 609,
637 (1975), Congress did not disapprove the regulations or amend the
law before the regulations, including the appearance provision, took
effect in July 1975.
More importantly, although the 1982 amendment removed a specific
reference to appearance codes from the regulations, it did not create a
new exception or alter in any way the Title IX regulations' central
prohibition on sex discrimination or the other specific prohibitions in
Sec. 106.31(b). Indeed, the Department would not have authority to
take any action that creates an exception from Congress's clear
prohibition on sex discrimination or that is otherwise inconsistent
with Title IX.
The Departments of Justice and Education have clarified that the
1982 amendment did not exempt rules of appearance from the regulatory
prohibitions on sex discrimination. See Statement of Interest of the
United States at 13-14 & n.13, Arnold v. Barbers Hill Indep. Sch.
Dist., No. 20-cv-01802 (S.D. Tex. July 23, 2021), https://www.justice.gov/crt/case-document/file/1419201/download; see also
Rehearing En Banc Brief for the United States as Amicus Curiae
Supporting Plaintiffs-Appellees/Cross-Appellants, at 28 n.5, Peltier,
37 F.4th 104 (No. 20-1001(L), 20-1023), https://www.justice.gov/crt/case-document/file/1449811/download.
Moreover, since 1982 Federal courts, including in a recent Fourth
Circuit en banc opinion, have affirmed that a recipient's enforcement
of a sex-differentiated appearance code is subject to Title IX's
statutory prohibition on sex discrimination. See, e.g., Peltier, 37
F.4th at 114, 127-31 (holding that based on the ``plain language and
structure of the statute,'' Title IX ``unambiguously covers . . . sex-
based dress codes,'' and remanding the case for consideration of
whether the girl plaintiffs were harmed by the charter school's policy
requiring only girls to wear skirts). Courts have likewise recognized
that different hair length requirements for boys and girls are subject
to Title IX. See Hayden v. Greensburg Cmty. Sch. Corp., 743 F.3d 569,
583 (7th Cir. 2014) (holding that a policy requiring male basketball
players, but not female basketball players, to keep their hair cut
short, violated Title IX and the Equal Protection Clause); cf. Arnold
v. Barbers Hill Indep. Sch. Dist., 479 F. Supp. 3d 511, 524 (S.D. Tex.
2020) (finding under intermediate scrutiny that plaintiff had a
substantial likelihood of success on his sex discrimination claim under
the Equal Protection Clause challenging school district's sex-specific
hair-length policy).
With respect to questions on whether and how Sec. 106.31(a)(2)
applies to all students and all appearance codes, the Department
appreciates the opportunity to clarify that a recipient is barred from
carrying out different treatment or separation in a manner that
subjects ``any person'' to more than de minimis harm, except as
permitted by Title IX.
Note that if a sex-specific requirement or set of requirements in a
recipient's appearance code violate individual students' rights under
Title IX, it would not be a defense for that recipient to point to a
``comparably burdensome'' requirement for other students, or to argue
that the appearance code generally imposes ``equal burdens'' on both
sexes, because Title IX, like Title VII, ``works to protect individuals
of both sexes from discrimination, and does so equally.'' Bostock, 590
U.S. at 659 (finding that it is not a defense to sex discrimination
under Title VII for an employer to say that it discriminates against
both men and women because of sex); see also Peltier, 37 F.4th at 130
(rejecting the application of the ``comparable burdens'' test to a
claim of sex discrimination under Title IX and citing Bostock for the
proposition that ``[d]iscriminating against members of both sexes does
not eliminate liability, but `doubles it.'''). The Department is aware
that some courts still apply a ``comparable burdens'' test to analyze
Title IX claims alleging discrimination in the application of
appearance codes, see, e.g., Doe v. Rocky Mountain Classical Acad., No.
19-CV-03530, 2022 WL 16556255, at *7 (D. Colo. Sept. 30, 2022), but the
Department disagrees with that test for the reasons noted in Peltier,
37 F.4th at 130 n.13.
The final regulations sufficiently account for discriminatory
appearance codes, including both dress and grooming codes, and no
further changes to the regulations are necessary.
Changes: None.
[[Page 33825]]
8. Juvenile Justice Facilities
Comments: Some commenters argued that, by treating youth consistent
with their gender identity, the proposed regulations would increase the
risk of rape and sexual assault in juvenile justice facilities, making
it more difficult for such facilities to comply with applicable
standards under the Prison Rape Elimination Act (PREA), and noted that
the Department is obligated to thoroughly examine this potential issue
along with alternatives that would minimize or avoid increased risk of
sexual assaults in these facilities. The commenter noted PREA's
requirement that facilities have a written policy of zero tolerance for
sexual abuse and sexual harassment (28 CFR 115.311). Other commenters
referenced a lawsuit alleging that a cisgender inmate was raped by a
transgender inmate. Commenters also urged the Department to allow
juvenile justice facilities to make placements according to sex
assigned at birth.
Discussion: The Department's Title IX regulations apply to juvenile
justice facilities that receive Federal funds from the Department, but
they apply only to any education program or activity offered by such
facilities. Further, as noted above, Sec. 106.31(a)(2) does not apply
in contexts in which different treatment that causes more than de
minimis harm is ``otherwise permitted under Title IX,'' including in
``living facilities.'' 20 U.S.C. 1686. The Department recognizes that
juvenile justice facilities have an obligation to protect their
populations. The generalized data and anecdotal information cited by
commenters do not support the commenters' conclusion that these
regulations will increase the risk of rape or sexual assault at
juvenile justice facilities.
Changes: None.
9. Burden on Schools
Comments: Some commenters asserted that proposed Sec. 106.31(a)(2)
would burden recipients and other entities to the extent it causes
recipients to construct or retrofit facilities to protect privacy; bear
administrative and increased legal costs associated with rule changes
and record-keeping; monitor for sexual assaults in restroom and locker
room facilities; provide lengthier trainings; seek additional
assurances of religious exemptions; and forego participation in Federal
student aid programs in order to avoid application of these final
regulations under Title IX.
Discussion: The Regulatory Impact Analysis addresses costs and
benefits associated with the final regulations, including those
specifically attributable to Sec. 106.31(a)(2).
Changes: None.
V. Retaliation
A. Section 106.71 Retaliation
1. General Support and Opposition
Comments: Many commenters expressed support for the proposed
retaliation provisions, indicating the provisions would encourage
reporting, support a safer and more welcoming environment, promote
equal access to a recipient's education program or activity, be
consistent with case law, and clarify and streamline the process for
handling retaliation complaints, including the obligation to comply
with Sec. 106.44.
Some commenters opposed the proposed retaliation provisions to the
extent the provisions would treat all retaliation as a form of sex
discrimination, noting that there are motives for retaliation that do
not implicate sex.
Some commenters expressed concern that the proposed changes to
Sec. 106.71 would restrict respondents' ability to defend themselves,
and some commenters urged the Department to clarify that non-frivolous
cross-complaints do not constitute retaliation. Other commenters noted
that respondents sometimes make a retaliatory cross-complaint against a
complainant, which can force the parties to interact, lengthen the
process, drain the complainant's financial resources, and cause a
complainant to take a leave of absence or transfer schools.
Discussion: The Department agrees that the retaliation provisions
advance Title IX's nondiscrimination mandate by protecting those who
exercise their rights under Title IX and participate in grievance
procedures.
The Department disagrees with commenters who argued that the
proposed regulations would cover conduct that does not constitute sex
discrimination and confirms that is not the Department's intent. The
Supreme Court in Jackson made clear that retaliation against a person
for complaining of sex discrimination is `` `discrimination' `on the
basis of sex''' in violation of Title IX ``because it is an intentional
response to the nature of the complaint: an allegation of sex
discrimination.'' 544 U.S. at 173-74. The Department agrees with
commenters who noted that Title IX does not prohibit an individual from
taking adverse action against a person who engaged in protected
activity for legitimate, non-retaliatory reasons and that retaliation
unrelated to sex is not covered by Title IX. The definition of
``retaliation'' in the final regulations at Sec. 106.2 accounts for
this by specifying that retaliation covers only those actions taken
``for the purpose of interfering'' with Title IX rights or ``because''
the person participated in the Title IX process.\91\
---------------------------------------------------------------------------
\91\ References to participation ``in the Title IX process'' in
Section V include contexts where a person ``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 actions taken by a
recipient under Sec. 106.44(f)(1),'' consistent with the definition
of ``retaliation'' in Sec. 106.2.
---------------------------------------------------------------------------
The Department disagrees with commenters who suggested that
proposed Sec. 106.71 would restrict a respondent's ability to defend
themself, including by filing a cross-complaint. Section 106.45(e)
recognizes that a respondent may make a cross-complaint and a recipient
may consolidate resolution of that complaint with other complaints that
arise out of the same facts or circumstances. A cross-complaint would
not constitute retaliation under these regulations as long as there is
another reason for the cross-complaint that is not a pretext for sex-
based retaliation.
Changes: None.
2. Intersection With Sec. 106.45(h)(5)
Comments: Some commenters supported the proposed removal of the
statement in Sec. 106.71(b)(2) of the 2020 amendments that retaliation
does not include charging an individual with a code of conduct
violation for making a materially false statement in bad faith during a
Title IX grievance proceeding. Commenters argued that individuals
should not be punished simply because their allegations cannot be
substantiated. Commenters asserted that the prospect of being
disciplined for making false statements under the 2020 amendments has
deterred complainants from reporting sex discrimination.
Other commenters asserted that false allegations harm respondents,
future complainants, and the integrity of the grievance procedures, and
argued that the proposed change would make it harder to punish people
who lie during a Title IX grievance procedure.
Other commenters acknowledged that the Department moved a revised
version of this provision from Sec. 106.71(b)(2) in the 2020
amendments to new Sec. 106.45(h)(5) but asserted that differences
between the language in the
[[Page 33826]]
two provisions may be confusing to non-lawyers.
Some commenters urged the Department to clarify whether it is
retaliation for a recipient to discipline a student for making a false
statement or for engaging in consensual sexual conduct based solely on
the recipient's determination whether sex discrimination occurred.
Discussion: Section 106.71(b)(2) in the 2020 amendments provided
that when a recipient charges an individual with a code of conduct
violation for making a materially false statement in bad faith in the
course of a Title IX grievance proceeding, such an action would not be
considered 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. See 85 FR
30084. As explained in the July 2022 NPRM, the Department proposed
removing this provision in response to feedback that the framing of
Sec. 106.71(b)(2) in the 2020 amendments was confusing and could have
a chilling effect on a person's willingness to participate in a
recipient's grievance procedures. 87 FR 41490. Instead, the final
regulations include Sec. 106.45(h)(5), which prohibits a recipient
from disciplining a party, witness, or others participating in a
grievance procedure for making a false statement based solely on the
recipient's determination whether sex discrimination occurred.
The Department is not persuaded by commenters who suggested that
the differences between Sec. 106.71(b)(2) in the 2020 amendments and
Sec. 106.45(h)(5) in the final regulations would cause confusion or
make it harder to discipline students for lying. The Department
maintains that the affirmative prohibition on discipline based solely
on a determination whether sex discrimination occurred in Sec.
106.45(h)(5) of the final regulations will be easier to understand and
apply than its prior framing as an exception to a general rule
permitting discipline. A recipient will still have discretion to
discipline those who make false statements based on evidence other than
or in addition to the outcome of the Title IX grievance procedure. For
example, a recipient may rely on the same evidence presented during the
grievance procedure as evidence that a person made a false statement.
However, the determination that a person made a false statement cannot
be based solely on the determination whether sex discrimination
occurred, because a determination that sex discrimination did not occur
is not a proxy for a finding that statements made were false. For
example, statements alleging that particular conduct occurred may be
true and still not meet the standard for prohibited ``sex-based
harassment,'' because the conduct did not create a hostile environment.
Or a recipient may determine that there is insufficient evidence to
conclude that the alleged conduct occurred, but that does not
necessarily mean that the student lied about the conduct. Conflating
the determinations of whether sex discrimination occurred and whether
false statements were made can have a chilling effect on participation
in Title IX grievance procedures.
The Department appreciates the opportunity to clarify that
disciplining someone for making a false statement or for engaging in
consensual sexual conduct would violate Sec. 106.45(h)(5) if it is
based solely on the recipient's determination whether sex
discrimination occurred in a Title IX grievance procedure, and it would
also constitute retaliation if it otherwise meets the standards
outlined in Sec. 106.71 and the definition of retaliation in Sec.
106.2 (e.g., the recipient engaged in the discipline for purpose of
interfering with the person's Title IX rights or because they
participated in Title IX grievance procedures).
Changes: None.
3. Examples of Prohibited Retaliation
Comments: Some commenters expressed support for proposed Sec.
106.71(a), stating that the examples of prohibited retaliation would
encourage reporting incidents of discrimination and promote Title IX's
goal of eliminating sex discrimination.
Other commenters argued that proposed Sec. 106.71(a) is not
necessary because the definition of ``retaliation'' is broad enough to
cover the circumstances described in that paragraph. One commenter
argued that proposed Sec. 106.71(a) could unintentionally limit
enforcement objectives, such as by preventing alcohol or drug
violations from being adjudicated against a respondent when associated
with a Title IX complaint.
Some commenters suggested that the Department clarify proposed
Sec. 106.71 by providing non-exhaustive examples of retaliation, such
as disciplining a pregnant student seeking reasonable modifications or
disciplining a complainant for conduct that the school knows or should
know results from the harassment or other discrimination (e.g.,
defending themselves against harassers or acting out in age-appropriate
ways in response to trauma). Another commenter urged the Department to
modify the proposed regulations to address other code of conduct
violations, beyond those arising out of the same facts and
circumstances, to include any information learned as a result of the
Title IX grievance procedures. As an example, the commenter stated that
pursuing discipline against a student for an earlier violation of a
recipient's alcohol policy could deter a complainant from reporting an
unrelated sexual assault. Another commenter suggested that expressly
encouraging or requiring recipients to adopt amnesty policies would
more directly address the policy concern than proposed Sec. 106.71(a).
Other commenters expressed concern that proposed Sec. 106.71(a)
fails to consider recipients' interests in maintaining codes of conduct
for students, including codes of conduct that reinforce a recipient's
policies on sexual morality or religious observance. Commenters
asserted that recipients' inability to enforce their codes of conduct
for non-Title IX transgressions during the pendency of a grievance
procedure could prevent schools from maintaining effective discipline
among students and have negative impacts on the community.
Discussion: Proposed Sec. 106.71(a), which largely tracks the
language from the 2020 amendments, recognized that fear of being
disciplined for other code of conduct violations, such as underage
drinking, can be a significant impediment to a student's willingness to
report incidents of sex-based harassment and other forms of sex
discrimination. 85 FR 30536; 87 FR 41542. Proposed Sec. 106.71(a) was
intended to encourage reporting of sex discrimination and participation
in Title IX grievance procedures by providing assurance that a
recipient may not use its code of conduct to dissuade a person from
exercising their rights under Title IX or to punish them for having
done so.
The Department agrees with commenters who argued that initiating a
disciplinary process under the circumstances described in proposed
Sec. 106.71(a) may qualify as retaliation under the definition of
``retaliation'' absent the inclusion of that paragraph in the
regulations. It is valuable to remind recipients that they violate the
prohibition on retaliation if they initiate a disciplinary process
against a student for the purpose of interfering with Title IX rights
or because the student participated in Title IX grievance procedures.
However, proposed Sec. 106.71(a) was not intended to limit the
contexts in which initiating a disciplinary process could constitute
retaliation. For example, disciplining a
[[Page 33827]]
student who filed a complaint of sexual assault for an earlier
violation of a recipient's alcohol policy that did not arise from the
same facts or circumstances as the assault would not meet the standard
in proposed Sec. 106.71(a). But, in this example, it could still
constitute retaliation under Sec. 106.2 if the recipient initiated
such discipline for the purpose of interfering with that student's
Title IX rights or because the student had filed a Title IX complaint.
Because the example in proposed Sec. 106.71(a) does not articulate
substantive requirements or limitations beyond the standard outlined in
the definition of retaliation at Sec. 106.2, the Department has
removed it from the final regulations. The Department similarly removed
the example of peer retaliation in proposed Sec. 106.71(b) and instead
moved the reference to peer retaliation to the first sentence of Sec.
106.71 of the final regulations to make clear that references to
retaliation include peer retaliation. However, the removal of these
examples from the text of the regulations does not reflect a change in
policy; it reflects the Department's determination that examples of
prohibited conduct are more appropriately discussed in this preamble.
For similar reasons, the Department declines to add other examples
of prohibited retaliation to Sec. 106.71. The analysis of whether
specific conduct constitutes retaliation under the final regulations
requires a close examination of all the facts and circumstances.
Generally speaking, a recipient engages in retaliation in violation of
Title IX when it takes an adverse action against a person because they
engaged in a protected activity such as exercising their rights under
Title IX. For example, in the commenter's hypothetical of a recipient
disciplining a student after the student sought reasonable
modifications related to the student's pregnancy, OCR would generally
consider discipline to be an adverse action and a request for
reasonable modifications to be a protected activity. However, OCR would
also need to determine whether the recipient knew about the protected
activity when it initiated the discipline and whether there was a
causal connection between the protected activity and the discipline.
OCR would then need to determine whether the recipient had a
legitimate, non-retaliatory reason for the adverse action and whether
that reason was genuine or a pretext for prohibited retaliation. OCR
would also consider whether any exceptions to Title IX may apply, such
as a religious exemption.
Similarly, if the trauma of a sexual assault causes a complainant
to engage in problematic behavior (e.g., defiant or aggressive conduct,
missing class), a recipient may not initiate its disciplinary process
for that misconduct for the purpose of interfering with the student's
rights under Title IX. And, when the recipient knows that the student
has been subject to possible sex discrimination, it must offer and
coordinate supportive measures as described in Sec. 106.44(g), which
may include, as appropriate, measures to address trauma, fear of
retaliation, or harassment. But the prohibition on retaliation does not
bar a recipient from taking disciplinary action to address the
problematic behavior described above absent a retaliatory motive.
The Department recognizes that some recipients have adopted broader
``amnesty'' policies under which a recipient will not discipline
students for collateral conduct related to an incident of sex-based
harassment and that such policies may help encourage reporting. Nothing
in the final regulations precludes a recipient from adopting a broader
amnesty policy. The Department has determined, however, that Title IX
does not require all recipients to adopt such amnesty policies because
recipients may have legitimate nondiscriminatory reasons for enforcing
their codes of conduct with respect to collateral conduct.
At the same time, the Department also notes that under Sec.
106.44(b) of the final regulations a recipient must require its Title
IX Coordinator to monitor for potential barriers to reporting
information about conduct that reasonably may constitute sex
discrimination under Title IX and take steps reasonably calculated to
address these barriers. To the extent a Title IX Coordinator finds fear
of discipline for alcohol-related infractions, for example, to be a
barrier to reporting sex discrimination, a recipient may consider
adopting an amnesty policy as one approach to address that barrier.
The Department acknowledges that the prohibition on retaliation
could prevent a recipient from initiating a disciplinary process for
alcohol or drug violations against any person (including a complainant,
respondent, or witness), but only if the recipient initiates the
disciplinary process for the purpose of interfering with that person's
Title IX rights or because the person participated in Title IX
grievance procedures. That is, a recipient may continue to enforce its
code of conduct unless it has a retaliatory motive for initiating the
disciplinary process.
The Department disagrees with commenters who said that proposed
Sec. 106.71(a) would negatively impact community standards or prevent
a religious institution from enforcing its policies on sexual morality
or religious observance. While the Department has removed the example
in proposed Sec. 106.71(a) in the final regulations, the Department
confirms that the definition of retaliation in Sec. 106.2 and the
prohibition on retaliation in Sec. 106.71 of the final regulations
clearly restrict a recipient from initiating a disciplinary process
only when it does so for the purpose of interfering with an
individual's Title IX rights or because an individual participated in
Title IX grievance procedures. The prohibition on retaliation would not
prevent a recipient from enforcing its code of conduct for legitimate,
nondiscriminatory reasons.
Moreover, the Department notes that Title IX does not apply to an
educational institution that is controlled by a religious organization
to the extent that application of Title IX would be inconsistent with
the religious tenets of the organization. 20 U.S.C. 1681(a)(3); 34 CFR
106.12.
Changes: In the final regulations, the Department has removed the
last sentence of proposed Sec. 106.71 and paragraphs (a) and (b) in
their entirety. The Department also added ``including peer
retaliation'' after ``retaliation'' in the first sentence of Sec.
106.71 of the final regulations. Additional changes to proposed Sec.
106.71 are explained further below in the discussion of this provision
(Other clarifications to regulatory text).
4. First Amendment
Comments: Several commenters objected to the proposed removal of
the statement from Sec. 106.71(b) of the 2020 amendments that the
exercise of First Amendment rights is not a form of retaliation. Some
commenters found inadequate the Department's rationale that Sec.
106.71(b)(1) in the 2020 amendments is redundant of Sec. 106.6(d)(1).
Other commenters expressed concern that removal of this statement would
chill speech on matters related to Title IX or would make Federal
funding contingent on the restriction of First Amendment rights.
Commenters asserted that criticism of a recipient's Title IX
policies or practices should not be considered retaliation as that
approach would conflict with a party's right to defend their interests
and would unconstitutionally restrict protected speech. Some commenters
asserted that criticism of another student's decision
[[Page 33828]]
to report sex discrimination, make a complaint, or participate in a
grievance procedure is constitutionally protected unless it amounts to
harassment or falls under a First Amendment exception. Commenters urged
the Department to clarify that the prohibition on retaliation does not
require a recipient to punish students' protected speech and
association, even when those First Amendment rights are exercised with
retaliatory intent.
Some commenters argued that the removal of the statement that the
exercise of First Amendment rights is not a form of retaliation could
result in disciplining students or employees for simply choosing not to
associate with an individual who made an accusation against them in
violation of their First Amendment right of association. Commenters
noted that, while school-sponsored student organizations may be
required to comply with anti-discrimination policies as a condition of
sponsorship, citing Christian Legal Society Chapter of the University
of California, Hastings College of Law v. Martinez, 561 U.S. 661, 667,
682 (2010), purely private student groups may have strong associational
interests against government-backed interference in their membership
and leadership decisions. Commenters asserted, for example, that the
right to association would protect an organization's right to exclude a
person who made a complaint of sexual harassment against the leader of
the organization. The commenter argued that this exclusion is protected
by the right to freedom of association.
Discussion: The Department carefully considered commenters'
opinions regarding protection of First Amendment rights to speech and
association. The Department has long made clear that it enforces Title
IX consistent with the requirements of the First Amendment, and nothing
in Title IX regulations requires or authorizes a recipient to restrict
any rights that would otherwise be protected from government action by
the First Amendment. See 34 CFR 106.6(d); 2001 Revised Sexual
Harassment Guidance, at 22; 2003 First Amendment Dear Colleague Letter;
2014 Q&A on Sexual Violence, at 43-44. Section 106.6(d), which was
added in the 2020 amendments, appropriately and clearly states the
breadth of these protections, which extend to but are not limited to
the retaliation context. Further, including language regarding First
Amendment protections in the retaliation provision may create the
misimpression that such First Amendment protections are limited to the
retaliation context. However, the removal of this language from Sec.
106.71 of the final regulations does not represent a substantive
change.
The Department agrees with commenters who asserted that merely
criticizing a recipient's Title IX policies or practices or an
individual's decision to participate in a Title IX grievance procedure
would not alone constitute retaliation under the final regulations and
that the retaliation provisions do not require or authorize a recipient
to punish students who exercise their First Amendment rights. The
Department also agrees with commenters that Title IX appropriately
requires a recipient to address sex discrimination in its education
program or activity, including conduct that constitutes sex-based
harassment or retaliation under Sec. Sec. 106.2 and 106.71 of the
final regulations. The Department notes that other provisions also
require a recipient to protect the privacy and confidentiality of
personally identifiable information it obtains in the course of
complying with this part. See Sec. Sec. 106.44(j), 106.45(b)(5).
The Department interprets and applies the final regulations
consistent with the First Amendment and relevant case law, including
Christian Legal Society, 561 U.S. at 667, 682, which permits a
recipient to require school-sponsored student organizations to comply
with reasonable, viewpoint-neutral nondiscrimination policies regarding
access to the organization as a condition of sponsorship. The final
regulations do not govern ``purely private'' groups that are not part
of a recipient's education program or activity (e.g., operated,
sponsored, or officially recognized by a recipient).
Under the final regulations, a recipient-sponsored student
organization must not exclude a student for the ``purpose of
interfering'' with Title IX rights or ``because'' the person
participated in the Title IX process, but such an organization may
exclude a student to the extent it has another reason for the exclusion
that is not a pretext for sex-based retaliation or another form of
unlawful discrimination; the final regulations do not otherwise
regulate student association. Whether any specific instance of
exclusion from a student organization constitutes retaliation would
require an examination of the individual facts and circumstances.
Changes: None.
5. Requests To Clarify or Modify
Comments: Several commenters asked for clarification as to who can
make a complaint of retaliation. One commenter noted that the July 2022
NPRM indicates that retaliation complaints may be made by any person
``entitled to make a complaint of sex discrimination'' and asked
whether this is meant to exclude a respondent, an ally of a respondent,
or a witness from making a claim of retaliation. Some commenters urged
the Department to clarify that the prohibition on retaliation is
intended to protect complainants from retaliation for filing a
complaint and that a complainant should never be disciplined for
retaliation.
One commenter asked the Department to revise proposed Sec. 106.71
to remind recipients about their independent obligations to remedy any
hostile environment related to retaliation (such as by enforcing no-
contact orders) and not limit a recipient's obligation to initiate its
grievance procedures. The commenter argued that this would help to keep
the burden on recipients and avoid overreliance on complainants to seek
enforcement.
Some commenters asked the Department to clarify what steps parents
of elementary school and secondary school students can take when they
fear retaliation.
Discussion: With respect to the question of who may make a
retaliation complaint, as explained in the July 2022 NPRM, any of the
persons specified in Sec. 106.45(a)(2) has a right to make a
retaliation complaint. 87 FR 41541. Under the final regulations, this
includes a complainant; a parent, guardian, or other authorized legal
representative with the legal right to act on behalf of the
complainant; the Title IX Coordinator, after making the determination
specified in Sec. 106.44(f)(1)(v); or any student, employee, or person
other than a student or employee who was participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged retaliation. See Sec. 106.45(a)(2). Anyone who has
participated in any way in the Title IX process, including as a
complainant, respondent, or a witness, may make a retaliation complaint
if they believe the recipient or any other person, including a
complainant, respondent, or witness, took adverse action against them
because of their participation in Title IX grievance procedures.
Further, any of the persons listed in Sec. 106.45(a)(2), regardless of
any participation in the Title IX process, may make a complaint of
retaliation if they believe the recipient or another person has
otherwise taken adverse action against them for the purpose of
interfering with their Title IX rights. The Department disagrees with a
commenter's suggestion that a complainant should never be
[[Page 33829]]
disciplined for engaging in retaliation. Each complaint of retaliation
must be assessed under the relevant facts and circumstances to
determine whether it meets the definition of retaliation in Sec.
106.2.
The Department agrees with the comment that a recipient need not
wait for a complaint alleging retaliation to be filed to take actions
that would protect students from retaliation. Section 106.71 states:
``When a recipient has information about conduct that reasonably may
constitute retaliation under Title IX or this part, the recipient is
obligated to comply with Sec. 106.44.'' Under Sec. 106.44(f) of the
final regulations, a recipient's Title IX Coordinator must take certain
actions, such as to ``offer and coordinate supportive measures'' (which
may include no-contact orders), Sec. 106.44(f)(1)(ii), ``determine
whether to initiate a complaint of sex discrimination'' under certain
circumstances, Sec. 106.44(f)(1)(v), and ``take other appropriate
prompt and effective steps, in addition to steps necessary to
effectuate the remedies provided to an individual complainant, if any,
to ensure that sex discrimination does not continue or recur within the
recipient's education program or activity,'' Sec. 106.44(f)(1)(vii).
The Department has determined that additional regulatory text is not
necessary to further delineate this obligation.
With respect to the steps that parents of elementary school and
secondary school students can take when they fear retaliation, the
Department notes that they can make a complaint under the recipient's
grievance procedures pursuant to Sec. 106.45, file a complaint with
OCR pursuant to Sec. 100.7(b) (incorporated through Sec. 106.81), or
seek relief through the courts. See Cannon, 441 U.S. 677.
Changes: None.
6. Other Clarifications to Regulatory Text
Comments: None.
Discussion: The Department observed that the second sentence of
proposed Sec. 106.71, which would require a response when a recipient
``receives'' information about conduct that may constitute retaliation,
could be read to refer only to those circumstances in which a recipient
learns of retaliation from an outside source. Because that was not the
Department's intent, the Department revised this sentence so that the
provision accounts for any circumstances in which the recipient ``has''
information about retaliation. The Department further revised the
reference to ``may constitute retaliation'' to ``reasonably may
constitute retaliation under Title IX or this part'' to align with
parallel references throughout the final regulations. Lastly, the
Department observed that proposed Sec. 106.71 did not address whether
a recipient may use an informal resolution process to resolve a
retaliation complaint; the Department therefore added language
clarifying that a recipient may, as appropriate and consistent with the
requirements of Sec. 106.44(k), offer the parties to a retaliation
complaint the option of an informal resolution process. The Department
also added ``both'' before ``Sec. Sec. 106.45 and 106.46'' in the
fourth sentence to clarify that a postsecondary recipient would have to
comply with both provisions when consolidating a complaint of
retaliation with a complaint of sex-based harassment involving a
student party.
Changes: In addition to the changes explained above in the
discussion of this provision (Examples of prohibited retaliation), the
Department has revised the second sentence of proposed Sec. 106.71 to
change the term ``receives'' to ``has,'' to add ``reasonably'' before
``may constitute,'' and to add ``under Title IX or this part'' after
``retaliation.'' The Department has revised the third sentence of
proposed Sec. 106.71 to add language clarifying that a recipient may,
as appropriate, initiate an informal resolution process in response to
a retaliation complaint. Finally, the Department added ``both'' before
``Sec. Sec. 106.45 and 106.46'' in the fourth sentence.
B. Section 106.2 Definition of ``Retaliation''
1. Protected Activity
Comments: Some commenters urged the Department to clarify the
activities that are protected under the definition of ``retaliation''
(i.e., what constitutes a protected activity). Some commenters urged
the Department to provide examples of retaliation, including
retaliation against complainants, respondents, and others. One
commenter noted that since ``made a complaint'' was specifically
included in the proposed Sec. 106.2, ``responded to a complaint''
should be added as well in order for the provision to be equitable to
complainants and respondents.
Some commenters urged the Department to clarify that the proposed
regulations would not prevent a recipient from lawfully compelling the
good-faith participation of an employee or student of the recipient in
a Title IX proceeding. Commenters noted that permitting an employee of
a recipient to refuse to participate in any manner in a Title IX
grievance procedure would be at odds with the purpose of Title IX and
other obligations under the proposed regulations. One commenter stated
that the Department should consider exempting an employee complainant
from compelled participation in an investigation. One commenter
suggested clarifying that a recipient may compel participation on the
part of a non-employee who is authorized by a recipient to provide aid,
benefit, or service (such as a volunteer coach). One commenter noted
that, because non-participation is not considered protected activity
under Title VII, many employers have policies requiring employees to
participate as witnesses in Title VII investigations. The commenter
noted that many recipients changed similar requirements with respect to
students in response to the 2020 amendments, which has led to
recipients having inconsistent policies under Title VII and Title IX on
this issue and has prevented institutions from being able to conduct as
thorough an investigation as possible in the Title IX context.
Discussion: With respect to comments about what constitutes a
protected activity, the Department notes that the definition of
``retaliation'' at Sec. 106.2 includes an ``interference'' clause and
a ``participation'' clause, which define two types of protected
activity. The interference clause prohibits an adverse action taken
``for the purpose of interfering with any right or privilege secured by
Title IX'' and protects any actions taken in furtherance of a
substantive or procedural right guaranteed by Title IX and its
regulations. The participation clause applies when an adverse action is
taken because a 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
Department's Title IX regulations.
The participation and interference clauses are substantially
similar to parallel clauses in the retaliation provision of the
original regulations implementing Title VI, 29 FR 16301 (currently
codified at 34 CFR 100.7(e)), which has been incorporated in the
Department's Title IX regulations since they were originally issued in
1975. The Department's interpretation and application of these clauses
is consistent with the ``protected activity'' element required to
establish a prima facie case of retaliation and is informed by Federal
case law. See, e.g., Grabowski, 69 F.4th at 1121 (reporting sex-based
harassment
[[Page 33830]]
to school employees or otherwise speaking out against sex
discrimination is ``protected activity'' for purposes of Title IX
retaliation claim).
In response to a commenter's request for examples of protected
activities, the Department notes that a protected activity includes the
exercise of any rights under the final regulations, including, for
example, a complainant's or respondent's procedural rights under
Sec. Sec. 106.45 and 106.46, or a pregnant student's right to seek a
reasonable modification under Sec. 106.40(b)(3)(ii). Thus, prohibited
retaliation would include, for example, taking an adverse action
against a complainant or respondent because either appealed a
determination under Sec. 106.46(i) or against a pregnant student based
on a request for time off for a pregnancy-related medical appointment.
The Department disagrees with a commenter's suggestion to add
``responded to a complaint'' to the definition of ``retaliation.'' The
final regulations include ``made a complaint'' as an example because it
is an action that initiates the grievance procedures. The final
regulations further specify that a recipient may not retaliate against
a person because ``they participated or refused to participate in any
manner'' in the Title IX process, which includes responding to a
complaint. The Department has therefore determined that the suggested
revision would be redundant and is unnecessary.
The Department recognizes that the ``refused to participate''
clause in the proposed definition of ``retaliation'' could be read to
prevent a recipient from requiring an employee to participate in Title
IX grievance procedures. This language was added to the regulations as
part of the 2020 amendments to protect complainants' autonomy over how
their allegations are resolved. 85 FR 30122 n.547. However, the
Department agrees with commenters that giving an employee of a
recipient a right under Title IX to refuse to participate in Title IX
grievance procedures would be at odds with the purpose of Title IX and
other obligations under the final regulations. The Department has
therefore revised the final regulations to clarify that the definition
of ``retaliation'' does not preclude a recipient from requiring an
employee or other person authorized by a recipient to provide aid,
benefit, or service under the recipient's education program or activity
to participate as a witness in, or otherwise assist with an
investigation, proceeding, or hearing under this part. This change also
resolves commenters' concerns about inconsistency with Title VII.
With respect to employee complainants, under the revised
definition, an employee may decline to make a complaint under the
recipient's Title IX grievance procedures and may not be penalized for
that decision under Sec. Sec. 106.2 and 106.71. However, the
recipient's Title IX Coordinator may determine that the risk of
additional acts of sex discrimination occurring if the grievance
procedures are not initiated requires the Title IX Coordinator to
initiate a complaint. See Sec. 106.44(f)(1)(v). In such a case, the
recipient may require an employee to testify as a witness in such
grievance procedures.
The Department declines to extend this exception to permit a
recipient to require students to participate, because students do not
share the same obligation to support a recipient's compliance with
Title IX as do employees and the regulations have always recognized
that Title IX applies differently to students and employees because of
their different roles within a recipient's education program or
activity. Thus, for example, the final regulations require a recipient
to require certain employees to notify the Title IX Coordinator when
they have information about conduct that reasonably may constitute sex
discrimination, Sec. 106.44(c), and do not impose a similar
requirement on students. Further, a recipient generally exercises
control over its employees in ways that it does not with respect to
students.
Under the final regulations, a recipient may not retaliate against
a student (including an actual or potential complainant, respondent, or
witness) for refusing to participate in Title IX grievance procedures.
A recipient may, however, investigate and resolve a complaint
consistent with its grievance procedures under Sec. 106.45, and if
applicable Sec. 106.46, despite a student respondent's refusal to
participate. See, e.g., Sec. 106.46(f)(4). In such a circumstance,
imposing disciplinary sanctions on a respondent because the recipient
determines, following the conclusion of its grievance procedures, that
the respondent violated the recipient's prohibition on sex
discrimination, is not itself retaliation.
Changes: In the definition of ``retaliation'' in the final
regulations, we have added a sentence clarifying that nothing in the
definition or this part precludes a recipient from requiring an
employee or other person authorized by a recipient to provide aid,
benefit, or service under the recipient's education program or activity
to participate as a witness in, or otherwise assist with, an
investigation, proceeding, or hearing under this part.
2. Adverse Action
Comments: Some commenters addressed what may constitute
``intimidation, threats, coercion, or discrimination'' under the
``retaliation'' definition in proposed Sec. 106.2. Specifically, some
commenters argued that terms like ``intimidation'' and
``discrimination'' could cover trivial acts of exclusion or incivility
such as staring at someone. Some commenters asked whether particular
actions would constitute ``intimidation, threats, coercion, or
discrimination,'' such as making a comment on social media, assigning a
bad grade, exclusion from a recipient's programs, writing negative
letters of recommendations or assessments, and adverse hiring and
promotional decisions.
Some commenters noted that the risk of retaliatory disclosure of
information about a complainant can chill reporting of discrimination
and urged the Department to describe when such disclosure would
constitute prohibited retaliation. One commenter asked the Department
to clarify whether one party's disclosure of another party's identity
(or failure to remedy such disclosure) would constitute retaliation.
One commenter asked the Department to clarify that it could be
considered retaliatory to disclose information related to an
individual's status in a protected class, such as their gender identity
or sexual orientation, because of the potential for further sex-based
discrimination or harassment.
Commenters urged the Department to clarify that the Title IX
regulations do not compel a recipient to punish student-journalists for
the exercise of their First Amendment rights. Commenters also asked how
the proposed retaliation provision would apply to media organizations,
including the consequence of making materially false statements and
acting in bad faith.
One commenter asked the Department to clarify that disclosure of
information related to Title IX findings, as part of an employee
reference check, is not retaliation.
One commenter urged the Department to clarify whether and when
using additional investigation and adjudication processes could
constitute retaliation by the complainant or the recipient, such as
pursuing a Title IX process and a Title VII process based on the same
conduct.
Some commenters asked the Department to clarify that requiring a
complainant to enter a confidentiality agreement as a prerequisite to
accessing
[[Page 33831]]
their rights under Title IX, including to obtain supportive measures or
initiate an investigation or informal resolution, is a form of
retaliation.
Discussion: With respect to comments seeking clarification as to
what constitutes ``intimidation, threats, coercion, or discrimination''
as used in the definition of retaliation at Sec. 106.2, the Department
notes that substantially similar terms have been incorporated in the
Department's Title IX regulations since they were originally issued in
1975, and these precise terms appeared in Sec. 106.71 of the 2020
amendments. The Department's interpretation and application of these
terms is consistent with the ``adverse action'' element required to
establish a prima facie case of retaliation and is informed by Federal
case law. See, e.g., Ollier v. Sweetwater Union High Sch. Dist., 768
F.3d 843, 868 (9th Cir. 2014) (``Under Title IX, as under Title VII,
the adverse action element is present when a reasonable person would
have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable person from
making or supporting a charge of discrimination.'' (internal citations
omitted)).
The Department disagrees that terms like ``discrimination'' or
``intimidation'' suggest trivial acts of exclusion or incivility.
Courts have used those terms in describing prohibited retaliation, see
e.g., Jackson, 544 U.S. at 173-74 (retaliation is a ``form of
`discrimination' because the complainant is being subjected to
differential treatment''); White v. Gaston Cnty. Bd. of Educ., No.
3:16cv552, 2018 WL 1652099, at *13 (W.D.N.C. Apr. 5, 2018) (``The
record is replete with examples of intimidation''). The Department
agrees with commenters that, depending on the facts, making adverse
assessments or hiring and promotional decisions; lowering a student's
grades, making threats or disclosing confidential information on social
media; or excluding someone from an education program could constitute
intimidation, threats, coercion, or discrimination that, if taken for
the purpose of interfering with a person's Title IX rights or because
of a person's participation in Title IX grievance procedures, would
constitute retaliation under the final regulations. Whether a
particular action is adverse in any given case would require a fact-
specific analysis of how the action would affect a reasonable person in
the complainant's position. Cf. Burlington, 548 U.S. at 71 (holding
jury could reasonably conclude that the reassignment of
responsibilities would have been materially adverse to a reasonable
employee based on evidence that new position was ``more arduous and
dirtier,'' required fewer qualifications, and original position ``was
objectively considered a better job''). Compare Polite v. Dougherty
Cnty. Sch. Sys., 314 F. App'x 180, 183-84 (11th Cir. 2008)
(transferring a teacher to another school where he had the same
responsibilities, earned the same pay, and got along well with the
principal was not sufficiently adverse), with Johnson v. Watkins, 803
F. Supp. 2d 561, 574 (S.D. Miss. 2011) (transferring a literacy coach
from a middle school to an elementary school was adverse when it
entailed more work, less independence, greater out-of-pocket expenses,
and a younger age group that was outside the literacy coach's area of
expertise).
In response to questions concerning when a disclosure of
information may constitute retaliation, the Department agrees with
commenters that disclosure of certain information, including, for
example, information about a person's LGBTQI+ status or pregnancy or
related condition, can be harmful and chill reporting of incidents of
discrimination. Deliberately disclosing or threatening to disclose such
confidential information about a person would therefore constitute an
adverse action. Such disclosures may violate the prohibition on
retaliation, including peer retaliation, when they are taken for the
purpose of interfering with a person's Title IX rights or because of a
person's participation in Title IX grievance procedures. The Department
notes that other provisions also require a recipient to protect the
privacy and confidentiality of personally identifiable information it
obtains in the course of complying with this part. See Sec. Sec.
106.44(j), 106.45(b)(5).
The Department agrees with commenters that the Title IX regulations
do not require or authorize a recipient to punish students, including
student-journalists, for the exercise of their First Amendment rights.
See 34 CFR 106.6(d). The Department further notes that the Title IX
regulations apply to education programs and activities that receive
Federal financial assistance from the Department and generally would
not apply to media organizations unless they are part of a recipient's
education program or activity (e.g., operated, sponsored, or officially
recognized by a recipient).
The Department appreciates the opportunity to clarify that when a
student or employee whom a recipient has determined engaged in sex
discrimination transfers to another recipient institution, the final
regulations do not prohibit the first recipient from informing the
other recipient of the misconduct and doing so does not constitute
retaliation if the recipient has a legitimate nondiscriminatory reason.
See Sec. 106.6(e) discussion of Interaction between Title IX and FERPA
Regarding the Disclosure of Information that is Relevant to Allegations
of Sex Discrimination and Not Otherwise Impermissible; Sec. 106.44(j).
A recipient does not, however, have an affirmative obligation to
disclose such information under Title IX or this part.
The Department also appreciates the opportunity to clarify that
initiation of a disciplinary process or filing of a complaint outside
the Title IX context could constitute retaliation if these actions meet
the standards in Sec. 106.71 and the definition of ``retaliation'' or
``peer retaliation'' in Sec. 106.2 in the final regulations. Such
actions would only constitute retaliation if taken for the purpose of
interfering with a person's rights under Title IX or because they
participated in Title IX grievance procedures and the recipient lacks
another reason for the action that is not a pretext for sex-based
retaliation.
With respect to the comment on the permissibility of
confidentiality agreements, Sec. 106.45(b)(5) requires a recipient to
take reasonable steps to protect the privacy of the parties and
witnesses during the pendency of the grievance procedures, in
recognition of the fact that a party's improper disclosure of
information could compromise the fairness of the grievance procedures.
Section 106.45(b)(5) also specifies, however, that those steps must not
``restrict the ability of the parties to: obtain and present evidence,
including by speaking to witnesses, subject to Sec. 106.71; consult
with their family members, confidential resources, or advisors; or
otherwise prepare for or participate in the grievance procedures.''
Further, requiring a student to sign a confidentiality agreement as a
prerequisite to obtaining supportive measures, initiating an
investigation or an informal resolution, resolving a complaint
(formally or informally), or exercising any other rights under the
final regulations could constitute retaliation if it is done for the
purpose of interfering with Title IX rights or because the student
participated in the Title IX process in any way.
Changes: None.
3. Causal Connection
Comments: One commenter asked the Department to clarify the phrase
``for the purpose of interfering with any right or
[[Page 33832]]
privilege secured by Title IX'' in both proposed Sec. Sec. 106.2 and
106.71. Another commenter urged the Department to remove this phrase
because students do not typically have access to evidence of a
decisionmaker's state of mind to prove that the students were
disciplined for this purpose. The commenter also noted that recipient
officials who punish complainants may instead rely on sex stereotypes.
Another commenter argued that retaliatory motive is redundant
because intimidation, threats, coercion, and discrimination against
someone participating in Title IX grievance procedures would always
violate Title IX.
Discussion: In response to commenters' request that the Department
clarify or remove the phrase ``for the purpose of interfering with any
right or privilege secured by Title IX,'' the Department notes that
this standard has been incorporated in the Department's Title IX
regulations since they were originally issued in 1975. The requirement
to establish retaliatory motive is a core element of a retaliation
claim. Jackson, 544 U.S. at 173-74 (retaliation ``is discrimination `on
the basis of sex' because it is an intentional response to the nature
of the complaint: an allegation of sex discrimination''); Mercy Cath.
Med. Ctr., 850 F.3d at 564 (requiring proof of causal connection
between recipient's adverse action and plaintiff's protected activity
to establish retaliation).
Although a student may not have evidence of a decisionmaker's state
of mind, a retaliatory motive may be established through either direct
evidence (e.g., a written or oral statement demonstrating the action
was taken for the purpose of interfering with Title IX rights) or
circumstantial evidence (e.g., changes in the recipient's treatment of
the complainant following the protected activity, the time span between
when the individual engaged in a protected activity and when the
recipient took the adverse action, different treatment of the
complainant compared to other similarly situated individuals, deviation
from established policies or practices). To the extent a recipient
takes adverse action against a student based on sex stereotypes, the
recipient violates the prohibition on sex discrimination based on sex
stereotypes in Sec. 106.10 and, depending on the context, may also
violate the prohibition on bias and conflict of interest in Sec.
106.45(b)(2) in the final regulations.
The Department disagrees with commenters who asserted that
retaliatory motive is a redundant or unnecessary element of the
definition of ``retaliation.'' Although intimidation, threats,
coercion, and discrimination against a participant in a grievance
procedure always raise concerns, to establish an adverse action
constitutes retaliation, there must be a causal connection to the
protected activity: the adverse action must have been taken ``because''
an individual engaged in a protected activity or for the purpose of
interfering with a protected activity. For example, when a student
participates in Title IX grievance procedures, and then an employee of
the recipient denies that student's application to participate in a
study abroad program, the student may believe the recipient took that
action in retaliation for their participation in the grievance
procedures. The denial would constitute retaliation if, for example,
the employee knew the student had participated in Title IX grievance
procedures and denied the student's application to punish them for
participating. If, on the other hand, the employee was not aware of the
student's participation in Title IX grievance procedures or the
recipient had a legitimate, non-retaliatory reason for denying the
application (e.g., the program was already at capacity at the time the
student applied), then the denial would not constitute retaliation.
Changes: None.
4. Other Clarifications to Regulatory Text
Comments: None.
Discussion: In the first sentence of the definition of
``retaliation'' in Sec. 106.2, the Department reordered the list of
persons or entities who can be alleged to have engaged in retaliation
for clarity. The Department also revised a reference to ``other
appropriate steps taken by a recipient in response to sex
discrimination under Sec. 106.44(f)(6)'' to align with revisions to
the text and structure of Sec. 106.44(f) in the final regulations.
Changes: In the first sentence of the definition of ``retaliation'' in
Sec. 106.2, the reference to ``recipient'' has been moved to precede
``student'' and the reference to an ``employee'' has been combined with
``or other person authorized by the recipient to provide aid, benefit,
or service under the recipient's education program or activity.'' The
description of and reference to Sec. 106.44(f)(6) has been revised to
cover ``other actions taken by a recipient under Sec. 106.44(f)(1).''
C. Section 106.2 Definition of ``Peer Retaliation''
Comments: Some commenters appreciated that the proposed regulations
would clarify that prohibited retaliation includes retaliation by
students against other students. Other commenters asserted that a
recipient should not be responsible for the actions of students or
student groups that are not sponsored by the recipient. Some commenters
argued that explicit coverage of peer retaliation is unnecessary, as it
is covered by other provisions in the regulations. One commenter asked
whether the Department intentionally excluded retaliatory harassment
from the proposed definition of ``peer retaliation.'' Some commenters
urged the Department to include a more detailed description of what
constitutes ``peer retaliation'' and how it differs from
``retaliation'' by a recipient.
Some commenters asked the Department to consider broadening the
proposed definition of ``peer retaliation'' to cover retaliation among
a recipient's employees. Another commenter noted that coverage of peer
retaliation by non-supervisory employees would differ from parallel
legal obligations under Title VII.
One commenter suggested that the proposed definition of ``peer
retaliation'' could also extend to adult agents acting on behalf of the
student, such as parents or guardians.
One commenter worried that coverage of peer retaliation would be
burdensome and unworkable if recipients are expected to monitor
students' interactions, including on social media platforms.
One commenter warned that, absent a clear definition of peer
``coercion'' or ``discrimination,'' mere criticism against, or
ostracism of, an individual filing a claim or participating in a Title
IX procedure could be considered peer retaliation and violate students'
First Amendment rights.
One commenter urged the Department to restrict a recipient's
responsibility for addressing peer retaliation to instances when the
recipient has actual knowledge of retaliation and responds with
deliberate indifference.
Discussion: The Department agrees with commenters who stated that
Title IX prohibits discrimination by recipients but disagrees that
recipients have no responsibility to address retaliatory misconduct by
students or student groups. As explained in more detail in the
discussion of Sec. 106.44(a), a recipient with knowledge of conduct
that reasonably may constitute sex discrimination in its education
program or activity, whether engaged in by students, employees, or
other individuals, must respond promptly and effectively. Also, as
explained in the July 2022 NPRM, retaliation by peers could limit or
deny a student's access to
[[Page 33833]]
the recipient's education program or activity on the basis of sex. 87
FR 41540. The Department determined it needed to clarify the standards
applicable to student-to-student retaliation based on feedback received
during the June 2021 Title IX Public Hearing, which highlighted the
pervasiveness of peer retaliation against those who participate in a
recipient's grievance procedures under Title IX. 87 FR 41540.
The Department recognizes that conduct that meets the definition of
peer retaliation may sometimes also constitute sex-based harassment
under the final regulations. The elements for establishing peer
retaliation and sex-based harassment are not the same, even though both
are ultimately forms of sex discrimination. To fully implement Title
IX, a recipient must address such conduct whether it meets the
definition of ``sex-based harassment,'' ``peer retaliation,'' or both.
While the definitions of ``peer retaliation'' and ``sex-based
harassment'' do not explicitly reference one another, if sex-based
harassment between students is undertaken for the purpose of
interfering with Title IX rights or because the person participated in
the Title IX process, such conduct would also be peer retaliation. For
example, to constitute ``peer retaliation'' under the final
regulations, conduct must be undertaken for the purpose of interfering
with Title IX rights or because the person participated in some way in
Title IX grievance procedures. In contrast, hostile environment ``sex-
based harassment'' between peers is unwelcome sex-based conduct that,
based on the totality of the circumstances, is subjectively and
objectively offensive and so severe or pervasive that it limits or
denies a person's ability to participate in or benefit from the
recipient's education program or activity. Under the final regulations,
recipients have an obligation to address both.
With respect to requests to provide more detail about what
constitutes peer retaliation, the Department notes that the definition
of ``peer retaliation'' applies the longstanding understanding of
retaliation (i.e., actions taken for the purpose of interfering with
any right or privilege secured by Title IX) to the specific context of
retaliation by a student against another student. The July 2022 NPRM
included examples of such conduct, such as teammates vandalizing a
student's locker because he complained to school administrators about
unequal opportunities for girls or a student council president
threatening to remove a member from a committee if they serve as a
witness in a Title IX investigation of the president's friend. 87 FR
41540.
The Department acknowledges commenters' concern about employees who
may retaliate against one another in ways that constitute sex
discrimination. Although the Department determined it needed to clarify
in the text of the regulations that the prohibition on retaliation
applies to student-to-student retaliation, as discussed above, it is
not necessary to do so for employee-to-employee retaliation, which is
covered under the definition of ``retaliation'' in Sec. 106.2 and
prohibited by Sec. 106.71, as well as under Title VII. The Department
therefore declines the suggestion to revise the final definition of
``peer retaliation'' to cover employee-to-employee retaliation.
The Department declines to expressly extend the final definition of
``peer retaliation'' to adults acting on behalf of a student as a
recipient may lack control over the context of retaliation that takes
place between individuals who are not recipient employees, students, or
applicants. To the extent a recipient is aware of anyone engaging in
harassment or retaliation toward a student, the recipient must respond
consistent with its obligation under final Sec. 106.44, which may
include providing supportive measures or investigating a complaint.
With respect to commenters' concern about the burden of monitoring
for or responding to allegations of peer retaliation, the Department
notes that recipients are not required to investigate allegations of
peer retaliation that, even if proven, would not meet the definition of
``peer retaliation.'' See Sec. 106.45(d)(iv). And, because retaliation
is a form of sex discrimination, a recipient's duty with respect to
peer retaliation is to respond only to conduct that ``reasonably may''
meet the definition. Further, the Department does not expect a
recipient to monitor students' interactions on social media platforms.
However, to the extent a recipient has information that students are
threatening and intimidating each other to dissuade them from
exercising their rights under Title IX a recipient must take action to
address that conduct to preserve an educational environment free from
sex discrimination.
The final definitions of ``retaliation'' and ``peer retaliation''
are not intended to restrict any rights that would otherwise be
protected from government action by the First Amendment. See 34 CFR
106.6(d)(1). Any students, including complainants and respondents, may
make a complaint of peer retaliation. The Department appreciates the
opportunity to clarify that merely criticizing another student's
decision to participate in Title IX grievance procedures would not
alone constitute peer retaliation under the final regulations. The
final retaliation provisions do not require or authorize a recipient to
punish students who exercise their First Amendment rights to speech and
association.
The Department declines the suggestion to restrict a recipient's
responsibility for addressing peer retaliation to instances when the
recipient has actual knowledge of retaliation and responds with
deliberate indifference. The Department similarly declined to apply the
actual knowledge requirement to claims of retaliation in the 2020
amendments, because ``the Supreme Court [had] not applied an actual
knowledge requirement to a claim of retaliation.'' 85 FR 30537. The
Department agrees with that logic and also declines to apply the actual
knowledge and deliberate indifference standards to retaliation for the
same reasons it declines to apply those standards to sex-based
harassment, as explained in more detail in the discussion of Sec.
106.44(a).
Changes: None.
VI. Outdated Regulatory Provisions
A. Section 106.3(c) and (d) Self-Evaluation
Comments: While recognizing that the proposed regulations would
eliminate the self-evaluation procedures in Sec. 106.3(c) and (d)
because they are outdated, some commenters noted that similar
provisions for self-evaluation remain important options for future
Title IX regulations or guidance.
Discussion: Although the Department appreciates that provisions
requiring self-evaluation may be an option for future regulations, the
Department did not propose such provisions in the July 2022 NPRM. The
Department removed Sec. 106.3(c) and (d) from the final regulations
because they described requirements that are no longer operative.
Changes: None.
B. Sections 106.2(s), 106.16, and 106.17 Transition Plans
Comments: While recognizing that the proposed regulations would
eliminate the transition plan requirements in Sec. Sec. 106.2(s),
106.16, and 106.17 because they are outdated, some commenters noted
that similar provisions for transition plans remain important options
for future Title IX regulations or guidance. Other commenters
speculated that the removal of these provisions related to the
Department's proposal to
[[Page 33834]]
clarify that Title IX prohibits gender identity discrimination.
Discussion: Although the Department does not disagree that
provisions requiring transition plans may be an option for other Title
IX regulations in the future, the Department maintains that the
provisions requiring transition plans in Sec. Sec. 106.2(s), 106.16,
and 106.17 are outdated, and that no similar transition plan provisions
are required by these final regulations.
The removal of these provisions does not relate to Title IX's
coverage of gender identity discrimination. These provisions governed
the transition of certain single-sex institutions to coeducational
institutions in the years immediately following adoption of the
original Title IX regulations in 1975. The Department removed
Sec. Sec. 106.16 and 106.17 from the final regulations because they
describe requirements that are no longer operative or necessary. The
Department removed Sec. 106.2(s) from the final regulations because it
defined a term that, with the removal of Sec. Sec. 106.16 and 106.17,
is no longer included in the regulations. In addition, the authority
for Title IX's coverage of gender identity discrimination is explained
in the discussion of Sec. 106.10 above.
Changes: None.
C. Section 106.41(d) Adjustment Period
Comments: One commenter was concerned that because the Department
did not propose replacing Sec. 106.41(d) with a different adjustment
period, any interpretation of Title IX's application to athletics in
the final regulations would take effect immediately.
Discussion: Current Sec. 106.41(d) required recipients to come
into compliance with the original athletic regulations within three
years of the date those regulations became effective in 1975. The
Department removed Sec. 106.41(d) from the final regulations because
that adjustment period has passed and so the provision it is no longer
operative.
These final regulations do not include any changes to other
provisions governing athletics.
The effective date for other provisions amended in these final
regulations is addressed in the discussion of Effective Date and
Retroactivity (Section VII.F).
Changes: None.
VII. Miscellaneous
A. General Support and Opposition
Comments: Many commenters expressed overall support for the
proposed regulations, stating that they are necessary to effectuate the
broad purpose and goals of Title IX; would realign Title IX with its
core tenets; would streamline, strengthen, standardize, and update
Title IX protections; and would ensure equitable Title IX enforcement.
Other commenters expressed support for the proposed regulations because
they believed the regulations would improve the Title IX complaint
process, including by providing more effective and equitable practices
for responding to sex-based harassment. Commenters identified how the
proposed regulations would protect students, especially students from
vulnerable or marginalized groups, from the negative short- and long-
term effects of sex discrimination, including by providing an optimal
educational environment in which students and others feel safe, keeping
students in school and improving their future livelihoods, improving
students' mental, emotional, and physical health, and teaching students
to be better citizens. Some commenters expressed the belief that the
proposed regulations are necessary to protect civil rights from
infringement by States and balance the need for oversight with the
burden on recipients while also protecting freedom of expression and
freedom of religion and respecting the separation of church and state.
Many commenters also expressed general opposition to the proposed
regulations. For example, some commenters opposed the proposed
regulations on the grounds that the regulations are unclear, vague,
ambiguous, and impose open-ended standards on recipients.
Some commenters asserted that the proposed regulations would
interfere with teacher-parent relationships and increase a teacher's
role in a disproportionate way. Some commenters believed that the
proposed regulations increased liability for recipients, for example,
due to non-compliance by teachers and other staff, without increasing
protections for employees. One commenter asserted that the open-ended
nature of the proposed regulations incentivized recipients to err on
the side of over-enforcing Title IX at the expense of students,
faculty, and staff so recipients do not lose Federal funds.
Some commenters claimed that the Department should stay out of
education policy, and instead let education be handled by State or
local governments, including school boards. Some commenters believed
that the proposed regulations would create hostility between recipients
and their staff. Some commenters further characterized the proposed
regulations as distracting from what the commenters perceived as the
traditional goals of education, like teaching core subjects and
training students for future careers.
Discussion: The Department acknowledges the commenters' variety of
reasons for expressing support for the proposed regulatory amendments.
To the extent commenters expressed general support related to specific
provisions of the regulations, those comments are addressed in the
sections dedicated to those regulatory provisions in this preamble.
The Department similarly acknowledges commenters for sharing their
diverse reasons for opposing the regulations. However, the Department
has determined that the greater clarity and specificity of the final
regulations will better equip recipients to create and maintain school
environments free from sex discrimination. The Department developed the
proposed and final regulations based on an extensive review of its
prior regulations implementing Title IX, as well as the live and
written comments received during a nationwide virtual public hearing
and numerous listening sessions held with a wide variety of
stakeholders on various issues related to Title IX. The Department
understands the concerns voiced by some commenters that the proposed
regulations were vague or unclear and the Department acknowledges
commenters who shared feedback on proposed provisions that they
believed required clarification. The Department considered those
comments in the context of the specific provisions in which they were
raised, and has, when appropriate, revised regulatory text or addressed
commenters' concerns in the preamble. See, e.g., discussion of Hostile
Environment Sex-Based Harassment-First Amendment Considerations
(Section I.C). The Department also acknowledges the numerous commenters
during the virtual public hearing and listening sessions who described
the need for students and recipients to have a clear understanding of
their rights and obligations under Title IX, and the Department
specifically considered these commenters' concerns while drafting the
final regulations. To that end, the Department, among other things, has
identified bases of prohibited sex discrimination, see Sec. 106.10,
has specifically articulated the duties of recipients' employees, see
Sec. 106.44, and has provided detailed grievance procedures for
recipients to follow in addressing complaints, see Sec. Sec. 106.45
and 106.46.
[[Page 33835]]
The final regulations do not interfere with teacher-parent
relationships, and the Department further discusses parental rights in
the section below on parental rights. Regarding the appropriate role
for teachers and concerns about overenforcement, the Department notes
that the final regulations at Sec. 106.8(d) require annual Title IX
training for employees so they can adhere to the regulations'
requirements. Further, teachers' duties under Sec. 106.44 are
generally limited to reporting to the recipient's Title IX Coordinator
information about conduct that reasonably may constitute sex
discrimination under Title IX. Finally, the Department disagrees that
the obligations placed on employees go beyond what Title IX requires.
The statute broadly prohibits discrimination on the basis of sex in
federally funded education programs and activities, and the
Department--in an exercise of its authority to implement the statute
under 20 U.S.C. 1682--has determined that requiring employees to
identify and report sex discrimination is necessary to effectuate that
prohibition.
Responding to concerns about the Department overstepping its role,
the Department emphasizes that Congress, through the passage of Title
IX, concluded that the Federal government must address sex
discrimination in a recipient's education program or activity
regardless of traditional local and State control of education policy
in general. The Department is implementing that congressional mandate.
20 U.S.C. 1682. Nothing in the final regulations requires schools to
teach particular subjects or use particular curricula. 34 CFR 106.42.
In the Department's experience, recipients have been able to implement
Title IX regulations without engendering hostility in their staff, and
the commenter did not explain why this would change under the final
regulations. Likewise, the Department disagrees that the regulations
distract from what the commenters perceived as the traditional goals of
education; to the contrary, as noted above and underscored throughout
this preamble, the Department drafted these final regulations with the
benefit of the input of hundreds of thousands of stakeholders through
the public comment process and the final regulations are consistent
with the Department's statutorily mandated role in effectuating Title
IX.
Changes: None.
B. Parental Rights--Generally
Comments: Numerous commenters expressed opposition to the proposed
regulations because they believed that the proposals would negatively
impact or eliminate parental rights. Commenters expressed various
reasons, including that they believed the proposed regulations would:
interfere with parents' rights to raise their children, keep them safe,
and instill their moral values; interject the Department's values into
family matters; erode the traditional family structure; prevent parents
from deciding their children's curricula and accessing information
about their children; usurp parental control over their children's off-
campus conduct; give children too much autonomy to make major life
decisions without parental input; and allow recipients to ignore
parents' wishes. Some commenters asserted that the proposed regulations
would disrupt their children's education because families would leave
the public education system, and some commenters believed the proposed
regulations would expose parents to investigations, reprimands, and
criminal penalties.
Some commenters argued that the proposed regulations would be
contrary to case law holding that parental rights are fundamental
rights and would violate parents' liberty interests under the Due
Process Clause of the Fourteenth Amendment. Some commenters also felt
that the proposed regulations would exceed the scope and intent of
Title IX because Congress did not authorize the Department to diminish
parental rights.
Finally, many commenters objected to the proposed regulations on
religious grounds and asserted that the proposed regulations would
violate parents' First Amendment rights by preventing parents from
instilling religious values in their children and by forcing parents to
approve of behavior that violates their religious tenets.
Discussion: The Department disagrees with commenters' views that
the final regulations diminish parental rights and appreciates the
opportunity to emphasize the importance of strong and effective
partnerships between recipients and parents, guardians, or caregivers
and to clarify the ways the final regulations safeguard those
interests. When developing these final regulations, the Department
carefully considered commenters' input regarding parental rights. For
example, Sec. 106.6(g) affirms that the regulations do not interfere
with a parent's right to act on behalf of their minor child, Sec.
106.44(j)(2) permits disclosures of information obtained in the course
of complying with this part to a minor student's parent, and Sec.
106.40(b)(3) recognizes a recipient's duty to take actions to prevent
discrimination and ensure equal access upon notification by a parent of
a minor student's pregnancy or related conditions.
The Department disagrees that the final regulations interfere with
parents' rights to raise their children, keep their children safe, and
instill their moral values; erode family structures; or interject the
Department's values into family matters. To the contrary, the scope of
these final regulations is limited to Title IX, and commenters' claims
that these regulations will harm students, undermine or dictate family
moral values, or erode traditional family structures are speculative
and without supporting evidence. A nondiscriminatory and safe
educational environment for all students and educators supports all
students and their families. Further, the Department disagrees that
these final regulations advance specific ideologies or moral values
other than the broad nondiscrimination principle that Congress enacted
in Title IX. Rather, the final regulations clarify the scope and
application of Title IX's protections against sex discrimination. The
Department acknowledges commenters' concerns about families potentially
withdrawing students from school due to the final regulations, but this
concern is speculative and would not necessarily be a direct
consequence of the rule.
Commenters did not specify which proposed provisions would
allegedly give children autonomy to make major life decisions without
parental input or allow recipients to ignore parents' wishes. In any
event, the Department notes that Sec. 106.6(g), which, as explained in
the discussion of that provision, only had a small number of clarifying
revisions to the text of the 2020 amendments, states that these final
regulations do not derogate legal rights of parents to act on behalf of
their child and notes that nothing in these regulations confers
parental rights to any person or recipient. The Department's final
regulations do not impose criminal penalties on parents or include
provisions related to investigations or reprimands of parents.
Moreover, nothing in the regulations holds parents vicariously liable
for the actions of their children or requires a recipient to
investigate a parent whose student is a respondent in a grievance
proceeding.
With regard to claims that the regulations undermine parents'
rights to decide their children's curricula and to access information
about their children, the Department does not regulate curricula and
disagrees that the
[[Page 33836]]
regulations interfere with any established parental right to be
involved in recipients' choices regarding curricula or instructional
materials. The explicit limitation in the Title IX regulations
regarding the Department regulating curricula remains unchanged:
``Nothing in this regulation shall be interpreted as requiring or
prohibiting or abridging in any way the use of particular textbooks or
curricular materials.'' 34 CFR 106.42. Further, as explained with
respect to Sec. 106.6(g) and elsewhere in this preamble, nothing in
these regulations derogates a parent's FERPA right to review and
inspect the education records of their children or interferes with
teacher-parent communication.
Additionally, the Department disagrees with commenters' assertion
that the final regulations interfere with control over off-campus
conduct, and some commenters' reliance on Mahanoy to support that
assertion is misplaced. Mahanoy did not reach the issue of a
recipient's authority to discipline students for online conduct that
creates a sex-based hostile environment on campus. Indeed, the Court
suggested that the longstanding Tinker standard that schools can
regulate speech that materially disrupts classwork, creates substantial
disorder, or invades the rights of others--including ``harassment''--
may apply to off-campus or online speech in certain circumstances.
Mahanoy, 141 S. Ct. at 2045-46. Nonetheless, nothing in these final
regulations derogates parental control over their child's off-campus
conduct. See discussion of definition of Hostile Environment Sex-Based
Harassment (Section I.C).
The commenters cited several other cases that implicate various
parental rights. For example, some commenters cited Pierce v. Society
of Sisters, 268 U.S. 510 (1925), in which the Supreme Court recognized
the ``liberty of parents and guardians to direct the upbringing and
education of children under their control.'' Id. at 534-35 (citing
Meyer v. Nebraska, 262 U.S. 390 (1923)). Commenters likewise cited
Wisconsin v. Yoder, 406 U.S. 205, 234 (1972), in which the Supreme
Court concluded that a compulsory schooling law violated the Free
Exercise Clause of the First Amendment because it conflicted with the
religious beliefs of the Amish community to which it had been applied.
Nothing in the final regulations prevents parents from sending their
children to any particular educational institution or educating them in
any particular subject, nor does anything in the final regulations
otherwise violate the liberty interest recognized in Meyer and Pierce
or the Free Exercise rights recognized in Yoder. Likewise, commenters
also cited Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-
40 (1974), in which the Supreme Court held invalid a local school board
requirement that pregnant schoolteachers take unpaid leave for a
specific period of time, recognizing ``freedom of personal choice in
matters of marriage and family life'' under the Due Process Clause of
the Fourteenth Amendment. The Department emphasizes that nothing in the
final regulations interferes with personal choice in matters of family
life, and these final regulations support the personal choices of
pregnant teachers. Indeed, parents remain free to send their children
to institutions that, because of their religious tenets, are exempt
from certain applications of the regulations, see 34 CFR 106.12, and
the Department's regulations provide that they ``shall [not] be
interpreted as requiring or prohibiting or abridging in any way the use
of particular textbooks or curricular materials,'' see 34 CFR 106.42.
Thus, the Department maintains that these final regulations are
consistent with the First and Fourteenth Amendments and throughout this
preamble has reminded recipients of their obligations to respect rights
protected by the U.S. Constitution.
Moreover, nothing in the final regulations encroaches on a parent's
right to determine who is fit to obtain visitation rights with a
parent's minor children. In contrast to the statute at issue in another
case cited by commenters, Troxel v. Granville, 530 U.S. 57 (2000), the
final regulations specifically protect parents' rights by providing
that ``[n]othing in Title IX or 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,'' Sec. 106.6(g). Thus, although the Department agrees with
commenters that the Supreme Court has recognized that parents have a
liberty interest in controlling their children's upbringing, the
Department does not agree that the final regulations undermine that
interest.
Finally, the Department disagrees that these final regulations
exceed the Department's authority. As an initial matter, the Department
disputes the underlying premise to the commenters' argument that the
final regulations diminish parental rights. Further, as explained
elsewhere in this preamble. Congress assigned to the Department the
responsibility to ensure full implementation of Title IX and the
Supreme Court has recognized the Department's ``authority to promulgate
and enforce requirements that effectuate the statute's
nondiscrimination mandate.'' Gebser, 524 U.S. at 292.
Changes: None.
C. Religious Exemptions
1. General Support and Opposition
Comments: Some commenters expressed general support for the
Department's decision not to propose changes to Sec. 106.12, arguing
that Sec. 106.12, as revised in 2020, allows religious schools to
strive to eliminate sex discrimination in their communities while
acting in accordance with their religious tenets.
Some commenters expressed concern about how the proposed
regulations would interact with the religious exemption to the extent
the regulations conflict with religious tenets on human sexuality,
gender, and marriage. Several commenters urged the Department to
clarify the extent to which religious educational institutions would be
required to comply with various aspects of the proposed regulations,
including with respect to discrimination based on sexual orientation or
gender identity and sex-separate facilities and activities.
Some commenters argued that a religious exemption for provisions
related to sexual orientation and gender identity is not justified and
that eliminating the religious exemption would benefit campus climate,
academic scores, and student mental health. Some commenters argued that
the Title IX religious exemption should not allow recipients to punish
students because they are LGBTQI+ or have sought an abortion and urged
the Department to clarify that institutions eligible for the religious
exemption must still protect students from sex-based harassment. One
commenter noted that it is difficult to conceive of a religious tenet
that would be inconsistent with prohibiting sexual assault.
Discussion: The Department declines to amend Sec. 106.12, the
provision governing religious exemptions, in these final regulations.
Since 1972, Title IX has provided that its prohibition on sex
discrimination ``shall not apply to an educational institution which is
controlled by a religious organization if the application of this
subsection would not be consistent with the religious tenets of such
organization.'' 20 U.S.C. 1681(a)(3). The Department acknowledges that
some commenters opposed the religious exemption, but because Congress
enacted the Title IX statute with the exemption, the authority to
eliminate it also rests with Congress. As explained in more detail
[[Page 33837]]
below, the amendments the Department made to Sec. 106.12 in 2020
codified longstanding agency practice.
The Department cannot opine on the extent to which a particular
institution would be exempt from particular obligations, such as Title
IX's prohibition on sex-based harassment, because such a determination
requires a fact-specific analysis as to whether application of a
particular provision would be inconsistent with specific tenets of an
institution's controlling religious organization. See 20 U.S.C.
1681(a)(3); 34 CFR 106.12.
Changes: None.
2. Section 106.12(c)
Comments: Several commenters expressed concern that the 2020
amendments to Sec. 106.12 set criteria for when a recipient is
controlled by a religious organization that exceed the scope of the
Department's statutory authority under Title IX. Many commenters urged
the Department to rescind Sec. 106.12(c) or narrow the evidence a
recipient may offer to establish that it is controlled by a religious
organization. Some commenters asserted that the religious exemption is
inconsistent with Title IX's purpose and argued the Department must
give the exemption a narrow interpretation.
Discussion: When the Department adopted Sec. 106.12(c) in a
rulemaking separate from the 2020 amendments, see 85 FR 59916 (Sept.
23, 2020) (Free Inquiry Rule), the Department stated that Sec.
106.12(c) did not, and was not intended to, ``create new exceptions to
the Title IX statute.'' 85 FR 59949. In that rulemaking, the Department
explained that Sec. 106.12(c) would not make ``a substantial number of
educational institutions . . . newly eligible to assert a religious
exemption under Title IX, where they could not before,'' 85 FR 59973,
or ``substantially change the number or composition of entities
asserting the exemption.'' 85 FR 59977.
The Department also notes that some of the concerns expressed by
the commenters about Sec. 106.12(c) were addressed in the 2020
amendments and the Free Inquiry Rule.
First, recipients ``are not entitled to any type of formal
deference when invoking eligibility for a religious exemption, and
recipients have the duty to establish their eligibility for an
exemption, as well as the scope of any exemption.'' 85 FR 30479. The
burden is not on a student or the Federal Government to disprove any
claim for a religious exemption. See 85 FR 30475, 30480 (``The student
does not bear the burden with respect to the religious exemption.'').
Instead, a recipient must establish that it was eligible for an
exemption at the time the alleged noncompliance occurred.
Second, although Sec. 106.12(c) offers several different ways to
show that the educational institution is controlled by a religious
organization, it is not enough for recipients to show ``tenuous
relationships to religious organizations.'' 85 FR 59961. A recipient
``that merely has loose ties to religious teachings or principles,
without establishing `control' by a religious organization, is not
eligible to assert a religious exemption.'' 85 FR 59957.
Third, when an educational institution is controlled by a religious
organization, the relevant tenets to examine are those of the religious
organization, not the personal beliefs of an official or employee
working for the recipient. 85 FR 30478.
Finally, even if a recipient shows it is an educational institution
controlled by a religious organization and invokes the exemption, Sec.
106.12 ``does not prevent OCR from investigating or making a finding
against a recipient if its religious tenets do not address the conduct
at issue. In those cases, OCR will proceed to investigate, and if
necessary, make a finding on the merits.'' 85 FR 30477. And ``a
recipient cannot invoke a religious exemption to retaliate against a
person.'' 85 FR 30479.
These explanations issued in 2020 in conjunction with the adoption
of Sec. 106.12(c) make the scope of the provision and its operation
clear.
Changes: None.
3. Section 106.12(b)
Comments: Some commenters urged the Department to continue the
approach reflected in the 2020 amendments to Sec. 106.12, permitting
an educational institution to assert an exemption after OCR opens an
investigation. Some commenters warned that any requirement of pre-
approval of a recipient's religious exemption would be unlawful, lack
statutory authority, and impose administrative and legal costs on
religious schools, and require religious schools to expose internal
documents that risk reputational and privacy harms. Some commenters
encouraged the Department to urge other Federal agencies to adopt
regulations similar to Sec. 106.12. Some commenters suggested that the
Department modify the Title IX regulations so that religious exemptions
are granted automatically and the process for securing the Department's
assurance of an exemption is less burdensome.
Many commenters expressed concern about the impact of the
clarification in the 2020 amendments that schools may assert a
religious exemption after they are already under investigation. Many
commenters urged the Department to require schools to notify the
Department in advance of asserting a religious exemption and bar
schools from invoking the exemption retroactively. A few commenters
argued that the 2020 amendments to Sec. 106.12 had the effect of
encouraging schools to be less clear regarding whether and how they
intend to assert an exemption.
One commenter opined that seeking advance assurance can be
considered as evidence of the sincerity of an exemption claim. One
commenter expressed a concern that when schools can claim exemptions
for the first time during investigations, schools may use religion as a
pretext for unlawful discrimination. One commenter noted that a process
for advance assurance of an exemption and the transparency it fosters
is important to ensure that there is a genuine conflict between Title
IX and a religious tenet.
Some commenters expressed concern that the 2020 amendments to Sec.
106.12 do not require a school to identify any specific conflict with a
tenet of its controlling religious organization. Some commenters urged
the Department to amend Sec. 106.12(b) to clarify that any claimed
religious exemption must be sufficiently supported by a specific tenet
of the religion.
Discussion: The Department acknowledges the view of commenters that
a recipient should be able to more easily establish a religious
exemption and of commenters who urged the Department to require a
recipient to seek advance assurance of an exemption. Under Sec.
106.12(b), and consistent with longstanding agency practice, a
recipient may, but is not required to, submit a written statement to
OCR seeking assurance of a religious exemption prior to invoking such
exemption. A recipient may also assert a religious exemption in
response to a pending OCR investigation. As noted previously, the
Department did not propose changes to Sec. 106.12(b) in the July 2022
NPRM, and the Department continues to believe that the process outlined
in Sec. 106.12(b) appropriately balances the requirements placed on an
institution to establish an exemption and the need to ensure that
asserted exemptions are consistent with the statutory requirements.
The Department acknowledges that Sec. 106.12(b) uses different
language than
[[Page 33838]]
the Title IX regulations of other Federal agencies and, therefore,
other agencies may elect or be required to use different approaches in
addressing the same issue. In 2020, the Department concluded that such
interagency differences were acceptable, 85 FR 30504, and that comments
``regarding other agencies' regulations are outside the scope of this
rulemaking process and the Department's jurisdiction.'' 85 FR 30072.
The Department notes that many of the comments appear to assume
that, once a recipient receives an assurance from OCR that it has
established its eligibility for a religious exemption, complainants are
barred from filing Title IX complaints against that recipient. That is
incorrect. In an OCR proceeding, an assurance does not always preclude
OCR from investigating a complaint. Rather, even if a recipient shows
it is controlled by a religious organization and invokes the exemption,
Sec. 106.12 ``does not prevent OCR from investigating or making a
finding against a recipient if its religious tenets do not address the
conduct at issue. In those cases, OCR will proceed to investigate, and
if necessary, make a finding on the merits.'' 85 FR 30026, 30477.
Moreover, even when the allegations in a complaint seem to fall
squarely within the scope of a religious exemption, as the Department
repeatedly made clear in 2020, ``[i]f a complaint is filed, and the
complaint alleges that a recipient improperly applied a religious
exemption or any other exemption under Title IX, OCR will carefully
consider the complaint, evaluate compliance with the statute and
regulations, and respond accordingly.'' 85 FR 59948; see also 85 FR
59947; 85 FR 59973 (``If an individual feels the religious exemption
under Title IX and these regulations does not apply to an educational
institution, that individual may always file a complaint with OCR.'').
If, in the context of a specific complaint of unlawful discrimination
under Title IX, OCR determines that the complaint's allegations fall
within any assurance of a religious exemption that OCR has previously
provided, OCR may contact the controlling organization to verify those
tenets. If the organization provides an interpretation of tenets that
has a different practical impact than that described by the institution
or if the organization denies that it controls the institution, OCR
will not recognize the exemption.
With respect to comments on a recipient's obligation to identify a
conflict with the tenets of its controlling organization, the
Department notes that Sec. 106.12(b) states that a recipient's
statement seeking assurance of an exemption must ``identify[ ] the
provisions of [the regulations] that conflict with a specific tenet of
the religious organization.''
Changes: None.
4. Transparency
Comments: Some commenters stated that transparency about the
existence and scope of a school's religious exemption is important for
students and applicants to know whether they may be treated differently
than their peers because of their sexual orientation, gender identity,
reproductive history, or personal beliefs.
Discussion: The Department continues to believe, as it did in 2020,
that letters exchanged with recipients regarding religious exemptions
are subject to Freedom of Information Act requirements, see 85 FR
30480, ``including attendant rules regarding public disclosure of
commonly requested documents.'' 85 FR 30481; see 5 U.S.C. 552(a)(2)(D).
Those attendant rules require agencies to make available for public
inspection in an electronic format copies of all records that have been
requested three or more times or ``that because of the nature of their
subject matter, the agency determines have become or are likely to
become the subject of subsequent requests for substantially the same
records.'' Consistent with these requirements, because the Department
has received a significant number of requests for these documents, it
posts correspondence regarding assurances of religious exemptions from
Title IX on its website at www.ed.gov/ocr/correspondence/other.html
(last visited Mar. 12, 2024).
The Department believes its current practice of making OCR
religious exemption letters available online or through FOIA requests
is responsive to commenters' concerns. The Department further notes
that nothing precludes a prospective student or other individual from
asking a recipient whether it relies on any exemptions under Title IX
and for information about the scope of any such exemptions, to the
extent such information may inform their decision to apply to or attend
such recipient.
Comments on transparency regarding religious exemptions in a
recipient's notice of nondiscrimination are further addressed in the
discussion of Sec. 106.8(b).
Changes: None.
5. Religious Individuals
Comments: Some commenters expressed concern that although Sec.
106.12 protects schools controlled by religious organizations, it does
not protect individual students or employees who adhere to religious
tenets. One commenter urged the Department to extend Sec. 106.12 to
individuals, particularly in schools that are not controlled by a
religious organization.
Some commenters stated that the religious exemption does not offer
a remedy for what the commenters believe to be a conflict with
individuals' First Amendment rights to speak on topics such as gender
identity or abortion. One commenter urged the Department to make clear
that an employee may decline to provide medical care or services when
doing so would conflict with their religious beliefs.
One commenter urged the Department to consider expanding
application of Title IX's religious exemption to cover religious
student groups and argued that the proposed regulations would create
problems for student groups that seek to follow a statement of faith
that could be deemed offensive.
Discussion: The Department acknowledges that commenters raised
concerns about the application of the final regulations to individuals'
speech about a variety of specific topics, such as gender identity and
abortion. Consistent with Sec. 106.6(d)(1), nothing in the final
regulations requires or authorizes a recipient to infringe on
individuals' First Amendment or other constitutional rights. The extent
to which the final regulations' prohibition on sex-based harassment
intersects with First Amendment rights is addressed in the discussion
of the definition of sex-based harassment in Sec. 106.2.
While the statute's religious exemption applies to educational
institutions controlled by a religious organization, it does not exempt
student organizations, individual employees or students, or educational
institutions not controlled by religious organizations.
Changes: None.
6. 34 CFR 75.500(d) and 76.500(d)
Comments: Some commenters urged the Department to rescind 34 CFR
75.500(d) and 76.500(d), which prohibit public postsecondary
institutions receiving Department grants from enforcing certain non-
discrimination policies against religious student organizations,
because those regulations undermine the purpose of Title IX, are
redundant of constitutional protections, and were issued without
congressional authority and in violation of the APA.
Discussion: The Department did not request comments in the July
2022
[[Page 33839]]
NPRM on 34 CFR 75.500(d) or 76.500(d), which are outside the scope of
this rulemaking. The Department has proposed rescinding these
regulations in a separate rulemaking. See 88 FR 10857 (Feb. 22, 2023).
Changes: None.
D. Rulemaking Process
Comments: One commenter asserted the Department developed the
proposed regulations without employing a rulemaking process that
involved a committee of nominated Title IX practitioners and experts to
help the Department. One commenter suggested that the Department create
a standing advisory group of representatives from various sectors to
assist with considering policy issues and implementing the final
regulations so that standards can be set based on input gathered from
all sectors.
Some commenters argued that by proposing two separate notices of
proposed rulemaking to amend the Title IX regulations, the Department
deprived the public of proper notice and opportunity to consider the
interrelated interests in the proposed regulations. Some commenters
urged the Department to republish a comprehensive notice of proposed
rulemaking addressing Title IX in its totality rather than moving
forward with final regulations. Other commenters urged the Department
to issue final regulations that address all the proposed regulations.
Discussion: The Department believes the commenter who mentioned a
committee of nominated Title IX practitioners was referring to the
negotiated rulemaking requirements in section 492 of the Higher
Education Act (HEA). The requirements of section 492 apply exclusively
to regulations that implement Title IV of the HEA. Title IX is not part
of the HEA; rather, it is part of the Education Amendments of 1972.
Although the Department was not required to conduct negotiated
rulemaking for Title IX, the Department solicited live and written
comments as part of a June 2021 Title IX Public Hearing and conducted
listening sessions with stakeholders expressing a variety of views on
the 2020 amendments and other aspects of Title IX prior to drafting the
proposed regulations. See 87 FR 41390, 41395. Recommendations from
practitioners and experts were among the hundreds of thousands of
comments on the July 2022 NPRM received by the Department during the
notice-and-comment rulemaking process for these final regulations. The
comments received on the proposed regulations are posted for the public
to view on Regulations.gov. In addition, information regarding the live
and written comments received during the July 2021 Title IX Public
Hearing and at stakeholder meetings with the Department prior to
issuing the proposed regulations is discussed in the July 2022 NPRM.
See 87 FR 41390, 41395-96.
Consistent with the requirements of Executive Order 12866, the
Department coordinated with other agencies by sharing the proposed
regulations with the Office of Management and Budget (OMB) prior to
their publication. Through the interagency review process, OMB provided
other Federal agencies, including those that also administratively
enforce Title IX, an opportunity to review and comment on the proposed
regulations before they were published. In addition, in accordance with
Executive Order 12250, the Assistant Attorney General for Civil Rights
at the Department of Justice reviewed the proposed regulations and
approved them for publication in the Federal Register.
The Department acknowledges the suggestion that it create a
standing advisory group to assist with policy issues and implementing
the final regulations, but the previously discussed public hearing,
listening sessions, and notice-and-comment process provided a
sufficient opportunity for affected entities and individuals to offer
input on the final regulations. The Department also notes that nothing
in the final regulations precludes recipients from creating their own
advisory groups to help them with implementation. In addition, the
Department will offer technical assistance, as appropriate, to promote
compliance with the final regulations.
The Department considered all of the comments that were submitted
in response to the July 2022 NPRM, including those that objected to the
Department's decision to issue separate notices of proposed rulemaking.
The Department disagrees with commenters who objected to the
Department's issuance of two related notices of proposed rulemaking.
The July 2022 NPRM made clear that proposed Sec. 106.31(a)(2) would
not apply in the context of eligibility criteria for sex-separate
athletic teams because Congress recognized that athletics presents
unique considerations and that the Department would issue a separate
notice of proposed rulemaking to clarify Title IX's application to
criteria recipients use to establish students' eligibility to
participate on a particular male or female athletic team. 87 FR 41536-
38.
The Department recognizes that participation in team sports is
associated with many valuable physical, emotional, academic, and
interpersonal benefits for students and that recipients seek greater
clarity on how to comply with their Title IX obligations when
determining students' eligibility to participate on a sex-separate
athletic team consistent with their gender identity. Accordingly, on
April 13, 2023, the Department issued its Athletics NPRM, which was
approximately nine months after the Department issued its July 2022
NPRM. The Department received more than 150,000 detailed comments on
the Athletics NPRM. In light of the volume and substance of comments,
and to ensure full consideration of the range of views expressed in
those comments, the Department intends to publish a notice of final
regulations related to sex-related eligibility criteria for male and
female athletic teams separate from these final regulations. The
Department maintains its authority under the Javits Amendment to
promulgate reasonable provisions governing athletics that consider the
nature of particular sports, as detailed in the Athletics NPRM. See 88
FR 22862-63.
The Department declines commenters' suggestion to issue a new
comprehensive notice of proposed rulemaking, as the public received
proper notice and opportunity to comment, and these final regulations
reflect the Department's careful consideration of those comments.
Changes: None.
E. Length of Public Comment Period and Process for Submitting and
Posting Comments
Comments: Some commenters requested that the Department extend the
comment period to December 30, 2022. Some commenters criticized the
Department for what they perceived to be attempts to limit the
solicitation of comments, including by phrasing the deadline for public
comment as ``due on,'' rather than ``due before.'' Some commenters
urged the Department to extend the comment period because they had
difficulty submitting comments through the Regulations.gov website.
Some commenters expressed concern that thousands of public comments
from Regulations.gov had been removed, citing a disparity between the
number of comments posted on Regulations.gov and on the Federal
Register website. Some commenters opposed the editing, redacting, or
censoring comments posted on Regulations.gov.
[[Page 33840]]
Discussion: The Department published the July 2022 NPRM in the
Federal Register on July 12, 2022 (87 FR 41390), for a 60-day comment
period, stating specifically that comments must be received on or
before September 12, 2022. The APA does not mandate a specific length
for the comment period, but rather states that agencies must give
interested persons an opportunity to participate in the proceedings. 5
U.S.C. 553(c). This provision has generally been interpreted as
requiring a ``meaningful opportunity to comment.'' See, e.g., Asiana
Airlines v. FAA, 134 F.3d 393, 396 (D.C. Cir. 1998). Case law
interpreting the APA generally concludes that comment periods should
not be less than 30 days.\92\ In this case, commenters had 60 days to
submit their comments on the July 2022 NPRM.
---------------------------------------------------------------------------
\92\ See, e.g., Nat'l Lifeline Ass'n v. FCC, 921 F.3d 1102, 1117
(D.C. Cir. 2019) (``When substantial rule changes are proposed, a
30-day comment period is generally the shortest time period
sufficient for interested persons to meaningfully review a proposed
rule and provide informed comment.''); Nat'l Retired Teachers Ass'n
v. U.S. Postal Serv., 430 F. Supp. 141, 147 (D.D.C. 1977).
---------------------------------------------------------------------------
When a commenter submits a comment on Regulations.gov, they receive
a tracking number so they can use that number to locate their comment
once it is posted. The Department responded to any requests it received
for assistance with submitting comments via Regulations.gov, including
by providing the member of the public with information regarding the
Regulations.gov help desk and by accepting written comments via mail
and email for members of the public who requested an accommodation or
could not otherwise submit their comments via Regulations.gov. The
Department also consulted with the U.S. General Services Administration
(GSA), which administers Regulations.gov, during the comment period if
a member of the public contacted the Department expressing difficulty
submitting comments via Regulations.gov. GSA indicated to the
Department that there were no widespread problems submitting comments
through Regulations.gov during the comment period. In light of this,
the Department did not extend the comment period.
The Department received more than 240,000 comments on the July 2022
NPRM, many of which addressed the substance of the proposed regulations
in great detail. The volume and substance of comments on practically
every facet of the proposed regulations confirms that the public had
meaningful opportunity to comment, and that the public in fact did
meaningfully participate in this rulemaking. Cf. Pangea Legal Servs. v.
U.S. Dep't of Homeland Sec., 501 F. Supp. 3d 792, 820 (N.D. Cal. 2020)
(small number of comments received on a rule relative to other, similar
rules showed comment period was inadequate); N.C. Growers' Ass'n, Inc.
v. United Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) (refusal to
receive comments on or discuss the substance or merits of the rule did
not allow for a meaningful opportunity to participate). The Department
reviewed and considered all comments submitted during the comment
period, including duplicate comments.
Concerns that the Department removed thousands of public comments
on the July 2022 NPRM from Regulations.gov, on September 5, 2022, are
mistaken. There was no loss of comments on the July 2022 NPRM. Rather,
the Department corrected a commenter's erroneous assertion that the
comment in question represented the hundreds of thousands of
commenters. Specifically, a person who submits a comment on
Regulations.gov with an attachment may indicate that they represent
multiple individuals or organizations. This process allows individuals
to upload a submission with multiple signatures or a single submission
containing a number of comments from different individuals, and this
self-reported number is then included automatically by the
Regulations.gov system in the count of comments received. In this case,
a single commenter submitted a comment with a self-reported number of
201,303 submissions. That comment consisted of a policy memorandum
issued by the Consumer Financial Protection Bureau in 2013 and no other
information or attachments.\93\
---------------------------------------------------------------------------
\93\ The comment is available at https://www.regulations.gov/comment/ED-2021-OCR-0166-43621 (last visited Mar. 12, 2024).
---------------------------------------------------------------------------
After the self-reported number of submissions for that comment was
included in the total number of comments reflected on Regulations.gov,
the Department determined that the self-reported number of submissions
for that comment was inaccurate because the comment was actually
submitted on behalf of a single commenter. Once the error was
discovered, the Department informed GSA, and GSA corrected the number
of submissions for that comment to one.
Further, comment tallies are generated by GSA's Regulations.gov and
are publicly available on Regulations.gov. Neither the Department nor
GSA's Regulations.gov eliminated comments or types of comments in the
Department's tally count. With two narrow exceptions consistent with
Department policy, the Department made all material received from
members of the public available for public viewing on Regulations.gov
for the July 2022 NPRM. As explained in the July 2022 NPRM, the
Department did not make publicly available (1) portions of comments
that contained personally identifiable information about someone other
than the commenter or (2) comments that contained threats of harm to
another person or to oneself. See 87 FR 41390. Prior to making comments
available for public viewing on Regulations.gov, the Department
reviewed each comment for such content. Following this review, the
comments without such content were posted for public viewing on
Regulations.gov. The Department's review process takes time and
therefore, there were instances of a lag between the time an individual
submitted a comment via Regulations.gov and when it was posted
publicly. All comments that did not contain personally identifiable
information about a person other than the commenter or threats of harm
to the commenter or another person were made available in their
entirety for public viewing on Regulations.gov. In addition, comments
that contained personally identifiable information about someone other
than the commenter were made available for public viewing on
Regulations.gov with the personally identifiable information redacted.
The Department does not track individuals who submit comments,
including those who oppose the proposed regulations. The Department
made comments available for public viewing and reviewed and considered
all of the comments submitted during the comment period, including
comments that contained threats of harm or personally identifiable
information about someone other than the commenter.
Changes: None.
F. Effective Date and Retroactivity
Comments: Some commenters, noting the scope and breadth of the
requirements in the proposed regulations, asked the Department to give
recipients adequate time to implement the final regulations, with many
asking that the final regulations not take effect mid-year. Some
commenters explained that the HEA's master calendar gives postsecondary
institutions at least eight months to prepare for the adoption of new
Federal regulations and requires the regulations to take effect at the
start of an academic year.
[[Page 33841]]
Some commenters noted the proposed regulations were silent on
retroactivity and asked the Department to clarify the effective date.
One commenter suggested that the Department state that the applicable
grievance procedures are those that were in effect on the date a
complaint was made and that the applicable substantive rules are those
in effect at the time the alleged conduct occurred. One commenter
explained that when the 2020 amendments were released, postsecondary
institutions received many questions regarding whether recipients were
required to implement the new Title IX grievance procedure requirements
for complaints related to conduct that occurred prior to the effective
date, but that were unresolved when the 2020 amendments became
effective.
Discussion: Under the APA, the effective date for the final
regulations cannot be fewer than 30 days after the final regulations
are published in the Federal Register unless special circumstances
justify a statutorily specified exception for an earlier effective
date. 5 U.S.C. 553(d)(3). The Department has carefully considered
commenters' concerns, including concerns regarding sufficient time to
prepare for compliance and the requests to have these final regulations
become effective at the start of an academic year.
The Department appreciates suggestions from commenters as to an
appropriate length of time between publication of the final regulations
and their effective date. The Department notes again that these final
regulations are not promulgated under Title IV of the HEA and thus are
not subject to the master calendar under the HEA. They also are not
limited to institutions of higher education, but address civil rights
protections for students and employees in the education programs and
activities of all recipients.
For final regulations not subject to the HEA's master calendar, 60
days is generally sufficient for recipients to come into compliance
with final regulations. Consistent with the preamble to the 2020
amendments, the Department recognizes the practical necessity of
allowing recipients of Federal financial assistance time to plan for
implementing these regulations, including to the extent necessary, time
to amend their policies and procedures. See 85 FR 30026, 30534.
In response to commenters' concerns about the effective date, the
Department has determined that the final regulations will be effective
August 1, 2024. Recipients will thus have more than 90 days, far more
time than the statutory minimum of 30 days, to prepare for compliance
with these final regulations. The effective date of August 1, 2024
adequately accommodates the needs of recipients while fulfilling the
Department's obligations to fully enforce Title IX's nondiscrimination
mandate. The Department also notes that the effective date coincides
with the summer break for many recipients, which will provide them time
to finalize their Title IX policies and procedures prior to the start
of the new academic year.
The Department will not enforce these final regulations
retroactively.\94\ Federal agencies authorized by statute to promulgate
regulations may only create regulations with retroactive effect when
the authorizing statute has expressly granted such authority, which is
not the case here.\95\ The final regulations apply only to sex
discrimination that allegedly occurred on or after August 1, 2024. With
respect to sex discrimination that allegedly occurred prior to August
1, 2024, regardless of when the alleged sex discrimination was
reported, the Department will evaluate the recipient's compliance
against the Title IX statute and the Title IX regulations in place at
the time that the alleged sex discrimination occurred. The Department
also notes that regardless of when the final regulations become
effective, some reports regarding sex discrimination occurring in a
recipient's education program or activity may be handled under these
final regulations while others will be addressed under the requirements
of the 2020 amendments; this is not arbitrary and occurs any time
regulatory requirements are amended prospectively.
---------------------------------------------------------------------------
\94\ This position is consistent with the Department's general
practice. See 85 FR 30026, 30061; U.S. Dep't of Educ., Office for
Civil Rights, Questions and Answers on the Title IX Regulations on
Sexual Harassment, at 10 (July 2021) (updated June 28, 2022),
https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf.
\95\ See 5 U.S.C. 551 (Administrative Procedure Act provision
defining a ``rule'' as an agency action with ``future effect'');
Bowen, 488 U.S. at 208 (``[A] statutory grant of legislative
rulemaking authority will not, as a general matter, be understood to
encompass the power to promulgate retroactive rules unless that
power is conveyed by Congress in express terms.).
---------------------------------------------------------------------------
The Department understands that recipients may need technical
assistance during the transition period between publication of these
final regulations in the Federal Register and the effective date of
August 1, 2024, and after the regulations become effective to assist
them in fully implementing the regulations. The Department will offer
technical assistance, as appropriate, to promote compliance with the
final regulations.
Changes: The effective date of these final regulations is August 1,
2024.
G. Prevention
Comments: A number of commenters asked the Department to include
regulations requiring student-facing education and prevention
programming. Some commenters noted the previously recognized benefits
of such programming for helping recipients fulfill their longstanding
Title IX obligation to prevent future recurrence of harassment.
Commenters also recommended a broad array of requirements, such as
education regarding healthy relationships, relationship violence, sex
education, self-defense, safety awareness training, child sexual abuse,
and the role that drugs and alcohol play in sexual assault. In
addition, commenters made specific recommendations regarding sex
education in schools, which included comments advocating for more
comprehensive sex education, comments advocating for abstinence-only
sex education, and comments objecting to any form of sex education. One
commenter asked the Department to emphasize the importance of physical
safety and prevention measures, such as emergency call boxes, campus
security officials, and secured doors and windows.
One commenter urged the Department to provide recipients with
funding for prevention education because educating and training for
students and employees about the attitudes and behaviors that enable
sex discrimination and how to stop it would help recipients fulfill
their Title IX obligations.
Discussion: The Department acknowledges commenters' suggestions
regarding prevention training and sex education for students. However,
the Department declines to require certain training practices aside
from Sec. 106.8(d), which relates directly to individuals responsible
for implementing these regulations. Because the Department does not
control school curricula, the Department declines to add requirements
that a recipient instruct students on sex-based harassment prevention
or sex education but notes that nothing in these final regulations
would preclude a recipient from using its discretion to provide
educational programming to students that it deems appropriate. See 85
FR 30026, 30125-26.
Regarding Department funding for prevention education, the
authority to appropriate money for certain activities lies with
Congress.
Changes: None.
[[Page 33842]]
H. Tenth Amendment
Comments: Some commenters raised federalism concerns, stating that
the primary responsibility for education rests with parents and at the
State and local levels and that the proposed regulations would violate
the Tenth Amendment.
Discussion: These final regulations do not violate the Tenth
Amendment, which states: ``The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.'' U.S. Const.
amend. X. As explained in the 2020 amendments:
The Supreme Court's position is sufficiently clear on this
topic. ``[W]hile [the Federal government] has substantial power
under the Constitution to encourage the States to provide for [a set
of new rules concerning a national problem], the Constitution does
not confer upon [the Federal government] the ability simply to
compel the States to do so.'' The Tenth Amendment ``states but a
truism that all is retained which has not been surrendered.'' . . .
The Supreme Court always has maintained that ``[t]he States
unquestionably do retai[n] a significant measure of sovereign
authority . . . to the extent that the Constitution has not divested
them of their original powers and transferred those powers to the
Federal Government.'' . . . [T]here can be no dispute that the
Federal government retains the authority to regulate sex
discrimination . . . in education programs or activities that
receive Federal financial assistance, even though the same matters
also fall within the traditional powers of the States.
85 FR 30459 (footnotes omitted) (citing New York v. United States, 505
U.S. 144, 149 (1992); United States v. Darby, 312 U.S. 100, 124 (1941);
Garcia v. San Antonio Metro. Transit Auth., 469 U. S. 528, 549 (1985)).
The Department maintains its position from the 2020 amendments that
``[t]he Department, through these final regulations, is not compelling
the States to do anything. In exchange for Federal funds, recipients--
including States and local educational institutions--agree to comply
with Title IX and regulations promulgated to implement Title IX as part
of the bargain for receiving Federal financial assistance, so that
Federal funds are not used to fund sex-discriminatory practices. As a
consequence, the final regulations are consistent with the Tenth
Amendment.'' 85 FR 30459.
Changes: None.
I. Exceeding Authority
Comments: Some commenters asserted that the Department lacked
congressional authorization to issue the proposed regulations.
Specifically, some commenters stated Congress did not authorize the
Department to unilaterally implement Title IX regulations or to force
recipients to end all forms of sexual harassment and provide remedies
to survivors. Some commenters expressed that only Congress, rather than
the executive branch, has the authority to amend Title IX. Some
commenters stated the Supreme Court has ruled that areas such as
education should be decided by the people or the States because such
areas have not been specifically delegated to the Federal Government in
the U.S. Constitution. Some commenters asserted that the proposed
changes bypass the authority of State legislatures.
Discussion: The Department has the delegated authority to
promulgate the final regulations.
Under 20 U.S.C. 1682, agencies are specifically empowered to
effectuate section 1681 through regulations: each agency with the power
to extend Federal financial assistance to education programs or
activities ``is authorized and directed to effectuate the provisions of
section 1681 of this title . . . 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.'' Further,
such agencies may ensure compliance ``by the termination of or refusal
to grant or to continue assistance'' to a noncompliant recipient's
education program or activity. 20 U.S.C. 1682. Thus, as the Supreme
Court has recognized, ``[t]he express statutory means of enforcement
[of Title IX] is administrative.'' Gebser, 524 U.S. at 280. Congress
has validly delegated its power to implement Title IX to agencies such
as the Department.
Moreover, the Department disagrees with commenters' assertion that
this delegation does not extend to prohibitions on sex-based
harassment. The Supreme Court has held that sexual harassment is a form
of sex discrimination under Title IX. See id. at 283 (affirming ``the
general proposition that sexual harassment can constitute
discrimination on the basis of sex under Title IX''). The Department
thus has authority under 20 U.S.C. 1682 to implement the ban on sex
discrimination in 20 U.S.C. 1681 by promulgating regulations
prohibiting sex-based harassment and requiring recipients to address
it. This authority extends to requiring recipients to provide remedies
to complainants because such remedies eliminate the harm of sex-based
harassment and prevent its recurrence. Contrary to the commenters'
assertion, therefore, the regulations do not ``amend'' Title IX but
rather are a key part of ``effectuat[ing]'' Title IX's requirement that
recipients operate their education programs and activities free from
sex discrimination. 20 U.S.C. 1682.
The Department has not bypassed the authority of State
legislatures. In contrast to other statutes reflecting a cooperative
federalism, such as the Clean Air Act, Congress provided for only
Federal agencies, not State agencies, to adopt regulations implementing
Title IX. See 20 U.S.C. 1682.
Changes: None.
J. Views of Assistant Secretary Lhamon
Comments: Some commenters stated that Assistant Secretary Catherine
Lhamon must be recused from the rulemaking process or be removed from
her position, asserting that under her previous leadership, OCR created
problems that the 2020 amendments were intended to solve, was biased,
and overreached by conducting investigations into all aspects of
recipients' adjudication processes and campus life. These commenters
asserted that due to Assistant Secretary Lhamon's past public
statements, her record as Assistant Secretary from 2013 to 2017, and
statements made during her Senate confirmation hearing, neither OCR nor
the Department can comply with the APA's reasoned decision-making
requirement. The commenters explained that these concerns were
expressed in two letters sent to the Department in 2022 but said that
the Department failed to discuss these concerns in the proposed
regulations, thus tainting the rulemaking process and rendering any
final regulations arbitrary and capricious.
Discussion: The Department maintains that no statement on the part
of Assistant Secretary Lhamon and no actions taken by OCR under
Assistant Secretary Lhamon prevent the Department from engaging in
reasoned decision making and rulemaking.
In the context of a rulemaking such as this one, an agency member
should be ``disqualified only when there has been a clear and
convincing showing that the agency member has an unalterably closed
mind on matters critical to the disposition of the proceeding.'' Ass'n
of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1170 (D.C. Cir.
1979). This high standard recognizes that the ``legitimate functions of
a policymaker . . . demand interchange and discussion about important
issues'' and that, if an ``agency official is to be effective he
[[Page 33843]]
must engage in debate and discussion about the policy matters before
him.'' Id. at 1168-69. The D.C. Circuit in Association of National
Advertisers thus concluded that ``mere discussion of policy or advocacy
on a legal question . . . is not sufficient to disqualify an
administrator.'' Id. at 1171.
Here, the remarks noted by commenters indicate that Assistant
Secretary Lhamon advocated for robust procedural protections for
students, but nothing suggests she had an ``unalterably closed mind''
regarding any particular issue involved in this rulemaking. Moreover,
like the official in Association of National Advertisers, Assistant
Secretary Lhamon ``made the challenged comments before the [agency]
adopted its notice of proposed rulemaking.'' Id. at 1173. Indeed, she
made them even before she assumed her position as Assistant Secretary
in the current Administration. Nothing suggests that ``the interchange
between rulemaker and the public should be limited prior to the
initiation of agency action.'' Id. To the contrary, ``[t]he period
before [an agency] first decides to take action on a perceived problem
is, in fact, the best time for a rulemaker to engage in dialogue with
concerned citizens'' because ``[d]iscussion would be futile . . . if
the administrator could not test his own views on different audiences''
before initiating the action. Id. The same rationale applies to
prospective government officials, who must be able to engage the public
to determine the sorts of policies they ought to attempt to implement
if they later become officials. Engaging in this process and advocating
for certain changes does not violate the APA. See id. (``an expression
of opinion prior to the issuance of a proposed rulemaking does not,
without more, show that an agency member cannot maintain an open
mind'').
Moreover, the July 2022 NPRM was, and the final regulations are,
issued by the Secretary of Education, and the final sign-off comes from
the Secretary of Education, not the Assistant Secretary. There is no
contention that Secretary Cardona prejudged the issues or had a closed
mind.
In addition, the proposed and final regulations differ,
significantly in many respects, from the standards regarding sexual
harassment that were enforced during Assistant Secretary Lhamon's
tenure from 2013 to 2017. This further suggests that Assistant
Secretary Lhamon did not have an unalterably closed mind regarding the
contents of the updated regulations.
Finally, as this preamble indicates, the Department has engaged
with the many commenters who raised questions about, or opposition to,
the July 2022 NPRM. The final regulations reflect this engagement,
including the full consideration of the significant number of comments
received on the proposed regulations, and belies the notion that the
Department prejudged any issue addressed in these final regulations.
Changes: None.
K. Regulatory Action Not Necessary
Comments: Some commenters stated that the Department failed to
comply with Executive Order 12866, which requires an agency to identify
the problem it intends to address and assess the significance of the
problem, and Executive Order 14021, which directs the Secretary to
review existing regulations, orders, guidance, policies, and similar
agency actions that may be inconsistent with the policy that all
students should be guaranteed an educational environment free from sex
discrimination, including discrimination on the basis of sexual
orientation or gender identity. Other commenters asserted that the
Department failed to provide substantial evidence that revisions to the
2020 amendments were necessary, particularly because recipients have
had little time to assess the impact of the 2020 amendments.
One commenter asserted that the Department failed to cite adequate
evidence that sex discrimination remains a serious problem to justify
the proposed regulations, particularly in light of evidence that
indicates a decrease in the number of Title IX investigations and a
lack of data that indicates the prevalence of other forms of sex
discrimination, including discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity. One commenter said that the Department's fact
sheet about the July 2022 NPRM did not provide information about how
the proposed regulations would impact Americans and only addressed the
intentions and goals of the Department.
Discussion: The Department complied with all legal requirements,
including Executive Orders 12866 and 14021, in promulgating the
proposed regulations. In the July 2022 NPRM, the Department explained
the need for regulatory action based on its review of Federal case law
under Title IX; its enforcement experience; and stakeholder feedback
during the June 2021 Title IX Public Hearing, listening sessions, and
the meetings held in 2022 under Executive Order 12866. See 87 FR 41545.
Notwithstanding commenters' concerns with revising the Title IX
regulations given the recency of the 2020 amendments, as discussed
below, the Department's experience with application of the 2020
amendments informs its belief that changes are necessary, and that the
Department need not wait to compile additional data before addressing
the problems it has identified in those rules. See, e.g., Stilwell v.
Off. of Thrift Supervision, 569 F.3d 514, 519 (D.C. Cir. 2009) (``The
APA imposes no general obligation on agencies to produce empirical
evidence,'' and ``agencies can, of course, adopt prophylactic rules to
prevent potential problems before they arise. An agency need not suffer
the flood before building the levee.'').
Regarding commenters who questioned the lack or adequacy of data
that shows sex discrimination is a serious problem, the Department
acknowledged that ``there are limited data quantifying the economic
impacts of sex discrimination, including sex-based harassment, on
individuals.'' 87 FR 41546. However, the Department also acknowledged
``studies suggest[ing] that there is a cost associated with being
subjected to sex discrimination,'' id., and requested comment on these
issues, see id. at 41548. In response, as discussed in more detail in
the discussion of the definition of ``Sex-Based Harassment'' in Sec.
106.2, commenters referred the Department to data and other information
consistent with what the Department cited in the July 2022 NPRM,
supporting the prevalence and negative effects of sex discrimination,
especially with regard to sex-based harassment and sex stereotyping,
including information about the effects in certain educational settings
and among specific populations, such as LGBTQI+ students and Black
girls.
Despite the prevalence of sex discrimination, including sex-based
harassment, some recipients have reported a dramatic decline in Title
IX complaints since the 2020 amendments went into effect. See, e.g.,
Heather Hollingsworth, Campus Sex Assault Rules Fall Short, Prompting
Overhaul Call, Associated Press, June 16, 2022, https://apnews.com/article/politics-sports-donald-trump-education-5ae8d4c03863cf98072e810c5de37048 (stating that the University of
Michigan reported its number of Title IX complaints dropped from more
than 1,300 in 2019 to 56 in 2021 and Title IX complaints at the
University of Nevada, Las Vegas dropped from 204 in 2019 to 12 in
2021). In addition, the Department notes that Executive Order 12866
[[Page 33844]]
specifically directs that ``qualitative measures'' of benefits are
``essential to consider.'' 58 FR 51735. OMB's guidance for
implementation of Executive Order 12866 similarly directs agencies to
consider qualitative benefits of proposed regulations. See Off. of
Mgmt. & Budget, Executive Office of the President, OMB Circular A-4
(Sept. 17, 2003), https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/. The final regulations will have important
qualitative benefits, such as improvements for the psychological
wellbeing of students, that cannot be captured in the datasets that
certain commenters expected the Department to provide. These benefits
support the Department's conclusion that, under Executive Order 12866,
regulatory action is warranted. For a detailed discussion of data
sources as well as the costs and benefits of these final regulations,
see the Regulatory Impact Analysis.
Further, we appreciate the opportunity to clarify that the fact
sheet issued with the proposed regulations is not part of the proposed
regulations themselves but was developed to provide the public with an
overview of the requirements in the proposed regulations. The
Department has provided information regarding the impact of the
regulations, including costs and benefits, in the Regulatory Impact
Analysis section of the proposed regulations and final regulations.
Changes: None.
L. Need for Long-Lasting, Flexible Regulations
Comments: Some commenters expressed concerns about the shifting
Title IX regulatory landscape and asked the Department to develop long-
lasting regulations that can be maintained in future administrations.
Commenters noted that Title IX requires settled expectations and
expressed concern about the uncertainty arising from frequently
changing regulations, which can lead to confusion and possible erosion
of trust in postsecondary institutions' processes. One commenter
explained that time and resources must be spent to update policies and
procedures and train students and employees when Title IX regulations
are updated, and asserted that this time would be better spent
elsewhere. Some commenters expressed that when successive
administrations make changes to the Title IX regulations, it undermines
students' need for clarity about their rights and responsibilities or
otherwise harms professionals who work on Title IX compliance,
students, and the larger community.
One commenter noted that the Title IX regulations must be viewed
and applied in the context of a wide array of additional
considerations, including applicable State law, case law, Federal laws,
and institutional and system policies. In light of this, the commenter
urged the Department to ensure that the final regulations are flexible
enough to be implemented across a variety of postsecondary
institutions, incorporate a sensible level of simplicity, and provide
clarity regarding Federal expectations. One commenter stated that the
regulations need to align with each postsecondary institution's
expectations for its educational community, ensure accountability, and
provide a safe and secure environment, not punishment.
Discussion: The Department shares the commenters' interest in long-
lasting regulations that are balanced, widely acceptable, and that will
be maintained over time, and the Department is committed to
accomplishing this goal. As explained in the July 2022 NPRM, following
an extensive review of the 2020 amendments, live and written comments
received during the July 2021 Title IX Public Hearing, and information
received during listening sessions with a variety of stakeholders, the
Department issued the proposed regulations to provide greater clarity
regarding the scope of sex discrimination and better account for the
diversity of education programs or activities covered by Title IX. See
87 FR 41390. The Department also carefully considered the views
expressed in the over 240,000 comments received on the July 2022 NPRM
in developing these final regulations. The Department's view is that
because the final regulations are balanced and provide needed
flexibility for recipients, they are more likely to be long lasting,
which will ensure stability in the enforcement of Title IX over time,
aid recipients in setting expectations and ensuring accountability, and
provide recipients with flexibility to address sex discrimination while
ensuring that they will still meet their obligation to fully effectuate
Title IX's nondiscrimination mandate.
Further, as noted in the July 2022 NPRM, the final regulations
promote the goal of a well-understood regulatory regime and settled
expectations by providing greater clarity and restore protections that
the 2020 amendments did not address. See 87 FR 41459. These include,
for example, provisions necessary to ensure the prompt and equitable
resolution of complaints of sex discrimination other than sex-based
harassment, and recipient obligations to provide lactation space and
reasonable modifications to prevent sex discrimination and ensure equal
access for students who are pregnant or experiencing pregnancy-related
conditions. See 87 FR 41458, 41513. The Department also notes the focus
was on revising the 2020 amendments to the extent necessary to fully
effectuate Title IX's nondiscrimination mandate. Some provisions from
the 2020 amendments remain largely unchanged, including requiring
recipients to offer and coordinate supportive measures for complainants
and respondents; prohibiting bias and conflicts of interest; and
permitting consolidation of complaints.
Regarding concerns about the costs associated with regulatory
changes, the Department discusses the burden and benefits of the final
regulations in more detail in the Regulatory Impact Analysis.
Changes: None.
M. Intersection With Other Laws
Comments: A number of commenters expressed concern that the United
States Department of Agriculture's (USDA) funding for school meal
programs would be conditioned on compliance with the Department's Title
IX regulations, while another commenter noted that the USDA issued its
own interpretation of Title IX stating that sex discrimination included
discrimination based on sexual orientation and gender identity. Other
commenters, noting that Section 1557 incorporates sex as a prohibited
ground of discrimination by referencing Title IX's prohibition on sex
discrimination, suggested that the Department's proposed definition of
sex discrimination would significantly impact medical professionals.
These commenters stated that the Department must consider the impact on
other nondiscrimination laws and must clearly state that the
regulations do not apply to conduct covered by these or any other laws,
unless that conduct is clearly covered by these Title IX regulations.
Discussion: The Department acknowledges that there are
nondiscrimination laws other than Title IX that prohibit sex
discrimination and that other Federal agencies have their own Title IX
regulations or other regulations interpreting Title IX. For example, as
commenters observed, the USDA enforces its own Title IX regulations,
and HHS maintains regulations implementing Section 1557. The commenters
did not identify any
[[Page 33845]]
particular conflict between the proposed regulations and the
regulations of other Federal agencies. The Department confirms that the
final regulations only apply to recipients of Federal financial
assistance from the Department, regardless of whether other agencies'
regulations may also apply to a given recipient. The Department has
primary responsibility for enforcing Title IX with respect to its
recipients. No other Federal agency's funding is conditioned on
compliance with these final regulations. When a recipient receives
Federal financial assistance from the Department and another Federal
agency, the Department expects recipients to comply with the
Department's regulations and that other Federal agency's implementing
regulations interpreting Title IX. These final regulations are not
intended to and do not create a situation in which a recipient cannot
comply with all applicable Title IX regulations. Compliance with these
final regulations is not related to other Federal agencies' Title IX
regulations.
Changes: None.
N. Family Policymaking Assessment
Comments: Some commenters noted that under Section 654 of the
Treasury and General Government Appropriations Act of 1999, Federal
agencies are required to assess the impact of proposed regulations on
families and requested that the Department assess how the regulations
will impact families.\96\ Commenters stated that the proposed
regulations failed to include a Family Policymaking Assessment, which
would assess the proposed regulations' impact on family wellbeing, as
required by the Treasury and General Government Appropriations Act of
1999, 5 U.S.C. 601 note.
---------------------------------------------------------------------------
\96\ The commenters cited Public Law 105-277.
---------------------------------------------------------------------------
Discussion: The provision of the Treasury and General Government
Appropriations Act of 1999 cited by commenters pertains to ``policies
and regulations that may affect family well-being.'' 5 U.S.C. 601 note
(Assessment of Federal Regulations and Policies on Families). The
Department has reviewed and complied with all applicable requirements
for promulgating the proposed regulations and these final regulations.
These regulations apply to recipients of Federal financial assistance
and therefore do not directly regulate families.
Changes: None.
O. National Origin and Immigration Status
Comments: One commenter recommended that the Department remind
recipients in the final regulations that Title IX protects all students
regardless of national origin, immigration status, or citizenship
status, and referenced Supreme Court case law holding that undocumented
students have an equal right to public education in the elementary
school and secondary school settings.\97\ This commenter also
recommended that the final regulations state that threatening students
with deportation or invoking a student's immigration status to
intimidate or deter a student or their parents or guardians from making
a Title IX complaint constitutes retaliation under Title IX.\98\
---------------------------------------------------------------------------
\97\ The commenter cited Plyler v. Doe, 457 U.S. 202 (1982).
\98\ The commenter cited the 2014 Q&A on Sexual Violence.
---------------------------------------------------------------------------
Discussion: Although Title IX prohibits discrimination on the basis
of sex, the Department has stated that the Title IX regulations protect
individuals regardless of race, color, national origin, immigration
status, or another protected characteristic. See, e.g., 85 FR 30064,
30067. The final regulations clearly define retaliation in Sec. 106.2
and Sec. 106.71 and make clear that retaliation is prohibited.
Threatening to take retaliatory action for purposes of interfering with
any right or privilege secured by Title IX or its implementing
regulations would constitute retaliation. Because threats of
deportation and acts of intimidation based on invoking immigration
status are covered by the definition of retaliation at Sec. 106.2 if
those actions are taken for the purpose of interfering with a protected
activity under Title IX, additional language in the text of the final
regulations is unnecessary.
Changes: None.
P. Coverage of Employment
Comments: Some commenters objected to Sec. 106.57 as unlawful and
unauthorized and stated that the Department has no authority to include
employment-related provisions in Title IX because it is an education
statute.
Discussion: Title IX, 20 U.S.C. 1681, expressly states: ``No 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.'' As the Department stated in the 2020
amendments, Congress did not limit the application of Title IX to
students, and the regulations implementing Title IX have consistently
prohibited discrimination based on sex in employment-related contexts
that occur under a recipient's education program or activity. These
final regulations accordingly apply to any person, including employees,
in any education program or activity receiving Federal financial
assistance. At the same time, nothing in these final regulations shall
be read in derogation of any employee's rights under Title VII, as
expressly stated in Sec. 106.6(f). See 85 FR 30439. Similarly, nothing
in these final regulations precludes an employer from complying with
Title VII. Id. The Department recognizes that employers must fulfill
their obligations under both Title VII and Title IX, and there is no
inherent conflict between Title VII and Title IX. Nor is there any
language in Title VII or Title IX preventing the Department from
issuing regulations covering employment. See 85 FR 30439.
Changes: None.
Q. Funding for Compliance
Comments: Some commenters were concerned that the proposed
regulations would constitute an unfunded mandate for recipients. Some
commenters requested that Congress allocate resources for school
districts to implement the final regulations, while other commenters
urged the Department to allocate funds for prevention and education
programming.
Discussion: Title IX imposes certain requirements on recipients of
Federal financial assistance, but Congress does not appropriate funding
through Title IX itself. These final regulations do not, therefore,
address how recipients may acquire the funding they deem necessary to
comply with Title IX's requirements. The Department recognizes that, to
the extent recipients or parties realize costs as a result of the final
regulations, they will need to identify sources of funding to cover
those costs. These final regulations are focused on clarifying
recipients' legal obligations under Title IX. For a detailed discussion
of data sources as well as the costs and benefits of these final
regulations, see the Regulatory Impact Analysis
Changes: None.
R. Technical Assistance
Comments: Some commenters urged the Department to provide technical
assistance to school districts to assist them in implementing the final
regulations, including sample policies, procedures, handbooks, training
materials, checklists, and webinars to help reduce the implementation
burden
[[Page 33846]]
for recipients, especially for those that are smaller and less well-
resourced, and for elementary schools and secondary schools. Some
commenters urged the Department to supplement the final regulations
with technical assistance resources addressing interactions between
these regulations and FERPA, the Equal Access Act, Title VI, the IDEA,
and Section 504.
Discussion: The Department acknowledges the recommendation to
provide technical assistance and guidance on various topics. The
Department agrees that supporting all stakeholders in implementing
these final regulations is important and will offer technical
assistance to recipients, including elementary schools and secondary
schools, as appropriate, to promote compliance with these final
regulations. Individuals, including Title IX Coordinators, may contact
OCR at https://ocrcas.ed.gov/contact-ocr if they have questions about
Title IX or the other civil rights laws that OCR enforces. In addition,
the Equity Assistance Centers funded by the Department provide
technical assistance and training, upon request by school boards and
other responsible government entities, in the nondiscrimination
assistance areas of race, sex, national origin, and religion to promote
equitable education opportunities. Contact information for the Equity
Assistance Centers is available at https://oese.ed.gov/offices/office-of-formula-grants/program-and-grantee-support-services/training-and-advisory-services-equity-assistance-centers/equity-assistance-centers-training-and-advisory-services-contacts/ (last visited Mar. 12, 2024).
Individuals seeking assistance regarding the application of FERPA can
contact the Department's Student Privacy Policy Office at https://studentprivacy.ed.gov/?src=fpco.
Changes: None.
S. Coordination
Comments: One commenter suggested establishing formal coordination
within the Department for programs with similar and overlapping
purposes as Title IX, including VAWA 2022, the Clery Act, and the Safe
Schools Improvement Act, to provide consistency across programs and
lead to more efficient and comprehensive implementation. The commenter
also noted that many of these programs have data reporting requirements
and that sharing this data would lead to more efficient enforcement.
Some commenters encouraged the Department to work with the Department
of Justice and other agencies to ensure that the prohibitions in the
regulations apply across agencies.
Discussion: The Department understands the importance of intra-
agency and interagency coordination. In 1980, President Carter signed
Executive Order 12250, which among other things, directs the Attorney
General to coordinate the implementation and enforcement of Title IX.
The Department is committed to working with our Federal agency
partners--including the Department of Justice through their
coordinating authority under Executive Order 12250--to promote
consistent enforcement. These final regulations apply only to
recipients of Federal financial assistance from the Department.
The Department has coordinated and will continue to coordinate,
including sharing data when appropriate, among offices within the
Department that have jurisdiction over programs that have similar and
overlapping purposes as Title IX, as appropriate.
Changes: None.
T. Terminology
Comments: Some commenters suggested the Department use the term
``person'' or ``worker'' rather than ``student'' or ``employee'' to
describe the individuals Title IX protects. The commenters asserted
these terms are consistent with the statutory text, which prohibits
discrimination against ``any person'' under an education program or
activity, including visitors and independent contractors, as well as
other individuals who are either taking part or trying to take part in
a recipient's education program or activity.
Discussion: While the Department acknowledges comments received
about the terminology used to describe whom Title IX protects, it has
determined that the language used in the final regulations is
appropriate. The Department acknowledges that Title IX prohibits a
recipient from discriminating on the basis of sex in its education
program or activity and extends protections to any ``person'' but notes
that this terminology in the Department's Title IX regulations has
generally been consistent since the 1975 regulations. The final
regulations similarly use ``person'' to ensure that Title IX's
nondiscrimination mandate applies to anyone in a recipient's education
program or activity. For example, in addition to covering students and
employees, the definition of ``complainant'' also covers a person other
than a student or employee who was participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged sex discrimination, and Sec. 106.2 defines hostile
environment sex-based harassment as conduct that limits or denies a
person's ability to participate in or benefit from the recipient's
education program or activity. The Department notes that where the
final regulations use terms like ``applicant,'' ``student,'' or
``employee'' such terms are used not to narrow the application of Title
IX's nondiscrimination mandate but to require particular actions by the
recipient reasonably intended to benefit applicants, students, or
employees, or to require a recipient's employees to take particular
actions.
Changes: None.
U. Discipline of Student Organizations
Comments: One commenter representing a trade association of men's
fraternities asked the Department to clarify how a postsecondary
institution must respond to allegations of sex discrimination that
impact an entire student organization or group of student
organizations. The commenter urged the Department to make clear that
student organizations have due process rights, need a way to challenge
allegations of sex discrimination, and should not be preemptively
punished.
Discussion: Nothing in the final grievance procedure regulations
under Sec. 106.45, and if applicable Sec. 106.46, confers due process
rights on an organization because an organization cannot be a
respondent subject to such a proceeding. See Sec. 106.2 (definition of
``respondent''). However, beyond grievance procedures, the Department
notes that when a recipient is notified of conduct that reasonably may
constitute sex discrimination under Title IX or this part, the
recipient must also 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, and that these steps may
pertain to an organization or entity. See Sec. 106.44(f)(1)(vii).
While the final regulations do not require a recipient to afford due
process rights and an opportunity to challenge allegations of sex
discrimination to a student organization as part of its Title IX
obligations, nothing in the final regulations precludes a recipient
from doing so. A recipient might also act against an organization if
the recipient concludes that the organization violated the recipient's
code of conduct, but that would be an exercise of the recipient's own
disciplinary authority independent of these final regulations. Finally,
any individual, or group of individuals, who believes a recipient has
discriminated against them on the basis of sex in a
[[Page 33847]]
manner prohibited under Title IX may file a complaint with OCR, which
OCR would evaluate and, if appropriate, investigate and resolve
consistent with the requirement under Title IX that a recipient operate
its education or activity free from sex discrimination.
Changes: None.
V. Contractors
Comments: One commenter asked the Department to strengthen the
requirements in Sec. Sec. 106.4(c) and 106.51(a)(3) related to
contractors to clarify that recipients are responsible for any
discriminatory conduct by third-party contractors and vendors,
including those that provide monitoring software that discriminates
against LGBTQI+ students.
Discussion: The Department acknowledges the concern about
discriminatory conduct by contractors. The Department did not propose
changes to Sec. Sec. 106.4(c) or 106.51(a)(3), but the Department
appreciates the opportunity to clarify that a recipient may not absolve
itself of its Title IX obligations by delegating, whether through
express contractual agreement or other less formal arrangement, its
operations to contractors. The current regulations require a recipient
to provide assurance that its education program or activity will be
operated in compliance with the Department's Title IX regulations and
authorize OCR ``to specify . . . the extent to which such assurances
will be required of the applicant's or recipient's subgrantees,
contractors, subcontractors, transferees, or successors in interest.''
34 CFR 106.4(a), (c). OCR requires recipients to provide assurance that
they ``will ensure that all contractors, subcontractors, subgrantees,
or others with whom it arranges to provide services or benefits are not
discriminating in violation of [Title IX and other laws enforced by
OCR].'' U.S. Dep't of Educ., Office for Civil Rights, Assurance of
Compliance--Civil Rights Certificate, https://www.ed.gov/ocr/letters/boy-scouts-assurance-form.pdf (last visited Mar. 12, 2024).
The Department declines to opine on how Title IX may apply to
monitoring software because its application may depend on a number of
factors, including the specific software and how it is used. Anyone who
believes a recipient or its contractors has engaged in sex
discrimination, including through monitoring of students, may file a
complaint with OCR.
Changes: None.
W. Data Collection and Climate Surveys
Comments: Some commenters asked the Department to strengthen the
Civil Rights Data Collection (CRDC) by, for example, collecting and
disaggregating data on harassment and discipline of students based on
pregnancy, parental status, gender identity, sexual orientation status,
disability, family status, and economic status.
Some commenters said that the Department should require recipients
to conduct or improve campus climate surveys, or that the Department
should provide guidance on how to conduct such surveys. One commenter
encouraged the Department to require postsecondary institutions to
maintain and publish data about their sex-based harassment cases to
provide transparency and identify any illegal discrimination in how
postsecondary institutions implement their sex-based harassment
policies.
Discussion: The Department did not specifically request comments on
OCR's CRDC or future data collections in the July 2022 NPRM, and it
would be appropriate to specifically solicit public comment about any
changes to data collection and publication practices before making such
changes. The Department notes that nothing in the final regulations
precludes a recipient from collecting demographic data relating to the
recipient's Title IX complaints, including sex-based harassment
complaints, and from disaggregating such data, provided that it does so
consistent with its nondisclosure obligations under Sec. 106.44(j) and
other Federal, State, and local laws regarding dissemination of data.
Regarding climate surveys, these final regulations provide
recipients with the discretion and flexibility to determine how best to
assess their students' and employees' experiences with sex-based
harassment or sex discrimination generally, including through a
recipient's optional use of such surveys, which may be one way to
assess obstacles to equal opportunity. See Sec. 106.44(b) (barriers to
reporting). In addition, VAWA 2022 requires the Secretary of Education,
in consultation with other Federal agencies and experts, to develop an
online survey tool regarding postsecondary student experiences with
domestic violence, dating violence, sexual assault, sexual harassment,
and stalking.\99\ Following the development of the online survey tool,
postsecondary institutions that receive Federal assistance must
administer the online survey and publish campus-level results of the
online survey on their website. Although the requirements in VAWA 2022
regarding the creation and administration of an online survey tool are
only applicable to postsecondary institutions, once the survey tool is
developed, elementary schools and secondary schools may also find it
useful to review and adapt for their own purposes. In addition,
elementary schools and secondary schools may find it useful to review
the information available from the Department's National Center on Safe
Supportive Learning Environments at https://safesupportivelearning.ed.gov (last visited Mar. 12, 2024) for
assistance in conducting a climate survey.
---------------------------------------------------------------------------
\99\ Public Law 117-103, sec. 153 (Mar. 15, 2022).
---------------------------------------------------------------------------
Changes: None.
X. OCR Enforcement Practices
Comments: Some commenters expressed concern that OCR's voluntary
resolution agreements are inadequate to deter a recipient from
committing additional violations of Title IX and suggested additional
penalties for recipients, including fines, lawsuits, referrals to the
U.S. Department of Justice, suspension of eligibility for Federal
contracts and financial aid, or direct accountability for a recipient's
senior leadership and legal officers.
A group of commenters asked the Department to clarify what
constitutes a violation of the regulations such that a postsecondary
institution would be deemed ineligible for Federal student aid,
including Pell grants; how that institution would be notified of the
determination; and any review or appeal process for the decision. One
commenter expressed concern that OCR's complaint processing procedures
are too slow to be effective. One commenter recommended that the
Department provide a safe harbor for recipients who lack sufficient
resources for full compliance but demonstrate good faith through a
variety of means, including maintaining best practices for addressing
sex-based harassment and substantial compliance with the essential
requirements of Title IX.
Some commenters urged the Department to publicize OCR case
resolutions involving discrimination and harassment based on sexual
orientation and gender identity. Some commenters asked the Department
to collect and report disaggregated OCR complaint data related to
complaints of discrimination and harassment based on sexual
orientation, gender identity, sex characteristics, including intersex
traits, and sex stereotypes.
[[Page 33848]]
Discussion: In connection with suggestions regarding additional
penalties for recipients for Title IX violations, the Department's
enforcement authority under 20 U.S.C. 1682 and as set forth in 34 CFR
100.8 (incorporated in Sec. 106.81) provides that the Department may
seek compliance ``by the suspension or termination of or refusal to
grant or to continue Federal financial assistance or by any other means
authorized by law.'' Remedial action required of a recipient for
violating Title IX or these final regulations may therefore include any
action consistent with 20 U.S.C. 1682, and may include equitable and
injunctive actions as well as financial compensation to a complainant,
as necessary under the specific facts of a case.
The Department disagrees that voluntary resolution agreements are
inadequate to deter recipients from committing additional Title IX
violations. In the Department's experience, these resolution agreements
have proven effective in correcting Title IX violations.\100\ In
addition, if a recipient fails to comply with a voluntary resolution
agreement, the Department may take additional actions to address non-
compliance with Title IX, including the initiation of administrative
proceedings to suspend, terminate, or refuse to grant or continue
Federal financial assistance or refer the case to the U.S. Department
of Justice for judicial proceedings to enforce any rights of the United
States. OCR details the entirety of its enforcement process, including
the process the Department must follow prior to termination of Federal
financial assistance, in its Case Processing Manual.
---------------------------------------------------------------------------
\100\ See generally U.S. Dep't of Educ., Office for Civil
Rights, Fiscal Year 2022 Annual Report (2023), https://www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2022.pdf (highlighting key enforcement actions in each of
OCR's jurisdictional areas).
---------------------------------------------------------------------------
The Department clarifies that recipients are bound by Title IX and
this part as a condition of their eligibility for Department funding.
The Department emphasizes that it cannot pursue termination of Federal
financial assistance or refer a matter to the Department of Justice
unless a recipient refuses to voluntarily correct a violation after the
Department has notified the recipient of the violation. See 20 U.S.C.
1682; 34 CFR 100.8.
Additionally, in response to the request for OCR to publicize its
case resolutions, the Department notes that it already makes OCR's
resolution agreements available to the public on its website in a
database that can be searched by name of recipient or generally by
protected category and that this is sufficient to inform the public of
OCR's work. See, e.g., https://www2.ed.gov/about/offices/list/ocr/frontpage/caseresolutions/sex-cr.html (last visited Mar. 12, 2024). OCR
will continue to highlight specific cases of note to the public through
other means as appropriate to ensure awareness.
The Department acknowledges the commenter's concerns about timely
resolution of complaints. While the Department strives to resolve cases
efficiently and understands the importance of timeliness to the
parties, OCR's necessary case processing time will vary based on many
factors, including the allegations and facts presented. The Department
declines to include a safe harbor for recipients that address sex-based
harassment but do not comply with all of the requirements in the final
regulations because it is important for all recipients to comply with
the regulations in their entirety to ensure that statutory objectives
are met.
In addition, the July 2022 NPRM did not specifically propose
changes to OCR's complaint procedures generally, including with respect
to additional penalties or other means of deterrence, publicizing
cases, and collecting and reporting data. It would be appropriate to
seek public comment on that issue before making changes.
Changes: None.
Y. Severability
Comments: None.
Discussion: As discussed in the preambles to the 2020 amendments,
85 FR 30538, and the July 2022 NPRM, 87 FR 41398, it is the
Department's position that each of the provisions of these final
regulations discussed in this preamble serve an important, related, but
distinct purpose. Each provision provides a distinct value to
recipients (including elementary schools, secondary schools, and
postsecondary institutions), other recipients of Federal financial
assistance, students, employees, the public, taxpayers, and the Federal
government separate from, and in addition to, the value provided by the
other provisions. To best serve these purposes, the Department
clarifies that the severability clauses in part 106, including
Sec. Sec. 106.9, 106.18 (redesignated in these final regulations as
Sec. 106.16), 106.24, 106.46 (redesignated in these final regulations
as Sec. 106.48), 106.62, 106.72, and 106.82 continue to be applicable.
The Department also confirms that each of the provisions in the final
regulations is intended to operate independently of each other and that
the potential invalidity of one provision should not affect the other
provisions. Thus, for example, the prohibition on retaliation (Sec.
106.71 of the final regulations) and the provision on application of
Title IX to a sex-based hostile environment under a recipient's
education program or activity even when some conduct that occurred
outside of the recipient's education program or activity or outside of
the United States contributed to the hostile environment (Sec. 106.11
of the final regulations), operate independently of each other and of
each of the remaining regulatory provisions of these final regulations.
Similarly, specific grievance procedure requirements in the final
regulations, such as Sec. 106.45(b)(6), which requires an objective
evaluation of all evidence that is relevant and not otherwise
impermissible and prohibits credibility determinations based on a
person's status as a complainant, respondent, or witness, operate
separately from the clarification of the scope of sex discrimination
under Sec. 106.10 of the final regulations. Further, as explained in
the discussion of final Sec. 106.10, that provision lists bases of
discrimination that involve consideration of sex--sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity--which are distinct from the various forms of sex
discrimination that may occur, including sex-based harassment, sexual
violence, and the prevention of participation consistent with gender
identity, which are addressed in Sec. Sec. 106.2 and 106.31(a) of the
final regulations, respectively. The Department believes that every
provision of the final regulations is legally supportable, individually
and in the aggregate, but includes this discussion to remove any
``doubt that [it] would have adopted the remaining provisions of the
Final Rule'' without any of the other provisions, should any of them be
deemed unlawful. Mayor of Baltimore v. Azar, 973 F.3d 258, 292 (4th
Cir. 2020) (en banc) (citation and quotation marks omitted).
Changes: None.
Z. Addressing Other Issues
Comments: Some commenters suggested broadening the scope of the
proposed regulations to address other issues, for example: removing the
regulatory provisions related to single-sex education; school
discipline, including with respect to the intersection of sex and race
and the disparate impact of discipline on girls of color; systemic
discrimination in academia; requiring recipients to publish
expenditures on athletic
[[Page 33849]]
programs and setting expenditure limits; balancing Federal financial
assistance between men's and women's athletic programs; limitations on
service of alcohol by on-campus organizations; mandatory availability
of rape kits and drug tests in college health centers; advertisement of
free legal resources for students and employees; issues impacting
students with special needs, students who are immigrants, and students
who are English learners; requiring individuals found responsible for
sexual assault to register as sex offenders; suicidal ideation among
individuals involved in Title IX matters; emphasis on science,
technology, engineering, and math (STEM) and career and technical
education (CTE); and stronger and more transparent connections between
postsecondary administrations and the student body related to student
advocacy on sex-based harassment issues, including discussions with
community organizations and legal service providers.
Discussion: The July 2022 NPRM did not specifically propose changes
related to these issues, including single-sex education; the
intersection of sex and race in school discipline; systemic
discrimination in academia; funding for athletic programs (including
requirements to publish expenditures on these programs and set
expenditure limits); alcohol availability on campus; advertising free
legal resources; availability of rape kits and drug tests; issues
related to students with special needs, immigrants, or English
learners; sex offender registries; suicidal ideation; STEM and CTE; and
the relationship between a postsecondary institution's administration
and its student body related to student advocacy on sex-based
harassment. The Department has determined it would be appropriate to
specifically seek public comment before regulating on these issues. The
Department also notes that, although not required, nothing in the final
regulations precludes a recipient from advertising free legal resources
or making rape kits and drug tests available in its health center.
Similarly, although not required, nothing in the final regulations
precludes a postsecondary institution from allowing students to bring
representatives from community organizations and legal service
providers to discussions with the postsecondary institution on sex-
based harassment issues.
The Department notes that all recipients of Federal financial
assistance from the Department, including institutions of vocational
education and other recipients that operate STEM and CTE programs, must
comply with the final regulations. The Department also clarifies that
the final regulations do not alter existing regulations under the
Department's other civil rights laws, including Title VI, Section 504,
and the ADA. The Department will continue to enforce the Department's
regulations under those laws. Anyone who believes that a recipient is
discriminating on the basis of race, color, national origin, sex, or
disability may file a complaint with OCR, which OCR would evaluate and,
if appropriate, investigate and resolve consistent with the applicable
statute and regulations. The Department also notes that the final
regulations at Sec. 106.44(g) require a recipient to offer and
coordinate supportive measures as appropriate, which may include
counseling for a party who is experiencing suicidal ideation.
Additionally, the Department does not have the authority under Title IX
to require individuals found responsible for sexual assault to register
as sex offenders because sex offender registration is governed by other
Federal, State, or local laws.
Changes: None.
AA. Comments Outside the Scope of Title IX
Comments: The Department received a number of comments on issues
and concerns that fall outside of the scope of Title IX.
Discussion: The Department does not address comments that raised
concerns not directly related to the proposed regulations or Title IX,
or that were otherwise outside the scope of the proposed regulations as
published in the July 2022 NPRM.
Changes: None.
Regulatory Impact Analysis (RIA)
The Department expects the final regulations to result in wide-
ranging benefits for students, teachers, and other employees in
federally funded schools and postsecondary institutions as it aims to
fulfill Title IX's prohibition on sex discrimination. The final
regulations address several topics, including the scope of sex
discrimination; recipients' obligations not to discriminate based on
sex stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity; and recipients' obligations to
provide an educational environment free from discrimination on the
basis of sex. When implemented, the final regulations will help ensure
that all students experiencing sex discrimination receive appropriate
support and that recipients' procedures for investigating and resolving
complaints of sex discrimination are fair to all involved. The final
regulations also embed discretion and flexibility for recipients to
account for variations in school size, student populations, and
administrative structures, which will minimize burdens.
Among other things, the provisions in the final regulations--in
furtherance of the critical purposes of Title IX--protect student
complainants who have been subjected to sex-based harassment, including
sexual assault, and sex discrimination. They advance educational equity
and opportunity and strengthen protections for students who face
discrimination based on sexual orientation or gender identity. And they
require fair, evenhanded school procedures for complaints of sex
discrimination. These and other benefits discussed in this preamble
significantly outweigh the modest costs imposed by the final
regulations.
In response to its July 2022 NPRM, the Department received many
comments on its estimates of the burden of the proposed regulations,
principally regarding an anticipated increase in the number of
complaints and/or the relative complexity of certain new complaints. In
response to those comments, the Department has reviewed its assumptions
and estimates, including making updates as discussed below. As a result
of these updates, the Department estimates the final regulations will
not impose substantial new burdens that are not justified by the
significant benefits the Department expects from implementation of the
final regulations. Below, the Department addresses comments related to
the regulatory impact analysis.
A. Comments on the Department's Model and Baseline Assumptions
1. Regulatory Flexibility Act (Small Business Impacts)
Comments: Commenters offered a variety of opinions on the proposed
regulations' potential effects on small entities. For example, some
commenters asserted that the proposed regulations give recipients
greater flexibility, which they said would benefit small recipients
that will have options for compliance that better align with their
resources and capacity. Other commenters expressed concern that small
entities lack the capacity to handle costs associated with a potential
increase in Title IX investigations due to the proposed regulations'
requirements. Some commenters asserted that the Department failed to
explain the methodology behind the alternative size standard it used,
based on enrollment
[[Page 33850]]
data. One commenter stated their belief that the Department
mischaracterized the Small Business Administration (SBA) threshold for
small entities in the education sector as below $7,000,000 in revenue.
Another commenter noted the Department classified 44 percent of
four-year educational institutions and 42 percent of two-year
educational institutions as small entities under its alternative size
standard, but asserted that under SBA size standards and 2017
Statistics of U.S. Businesses data, at least 61 percent of colleges,
universities, and professional schools, and 81 percent of junior
colleges had revenues below the SBA standard and so should be assessed
as small entities.
Some commenters asserted the Department was required under the
Regulatory Flexibility Act to analyze how the economic impact of its
proposed regulations would differ across subsets of small entities,
including small religious educational entities.
Discussion: The final regulations benefit small recipients because
the regulations provide compliance options that better align with small
recipients' resources and capacity. As discussed in the July 2022 NPRM,
the Department's model accounts for this additional flexibility. See 87
FR 41546.
The Department acknowledges commenters' concerns that some small
entities may lack the capacity to handle costs associated with an
increase in Title IX complaints. The Department estimates that
inclusion of the additional bases of sex discrimination within the
scope of the Department's Title IX regulations may result in a 10
percent increase in the number of investigations conducted annually.
See 87 FR 41548, 41550 & n.27. The Department carefully considered the
potential increase in Title IX investigations in connection with the
July 2022 NPRM and did not receive information that requires a change
to that assumption or highlights circumstances in which the increase in
the number of investigations would increase so dramatically that it
would impose prohibitive burdens.
Nor did commenters submit data necessitating a change to the
Department's cost estimates. Although one commenter asserted that the
Department's projected net increase in costs of $3,090-$8,986 per year
inaccurately assesses the impact of the regulations, the commenter did
not provide information that would change that estimate. The estimated
costs, moreover, may be lower for religious educational entities that
claim an exemption under Sec. 106.12.
The Department previously explained the methodology behind the
alternative size standard it used. 87 FR 41564. As in the 2020
amendments, for purposes of assessing the impacts on small entities,
the Department proposed using enrollment as a basis for defining
``small institutions of higher education (IHE).'' See 85 FR 30570. As
discussed in the preamble to the 2020 amendments, the Department did
not purport to adopt the SBA revenue standard under 13 CFR 121.201 and
declines to do so here. Therefore, the comparative percentages, which
were based on SBA regulatory size standards, are inapposite. As
explained in more detail in the discussion of the Regulatory
Flexibility Act below, the Department is not using a $7,000,000 revenue
threshold to define small LEAs in the final regulations. The Department
acknowledges the suggestion to separately analyze the impact on the
smallest entities, but notes that, as stated in the July 2022 NPRM, the
Department's model assumes that each small IHE would conduct the same
number of investigations per year, on average, as the total universe of
all affected IHEs. 87 FR 41564. That assumption probably overstates the
costs because it is much more likely that small IHEs will conduct fewer
investigations per year and therefore, their actual realized costs will
be less than estimated by the Department.
The Department also considered the impact of the final regulations
on a subset of smaller entities, noting that, according to data from
the Integrated Postsecondary Education Data System (IPEDS),
approximately 175 IHEs had total reported annual revenues of less than
$900,000, and those IHEs enrolled, on average, 36 students in Fall
2020. Id. Similarly, according to data from the National Center for
Education Statistics (NCES), in 2018-2019, 123 LEAs had total revenues
of less than $1,760,000 and enrolled, on average, 35 students each in
the 2018-2019 school year. Based on the significantly lower enrollment
at small IHEs and LEAs, the Department does not anticipate that the
final regulations will place a substantial burden on smaller IHEs or
LEAs because, in the Department's predictive judgment, it is ``highly
unlikely'' that these recipients will conduct the number of
investigations that would impose significant costs. Id. See also the
discussion of the Regulatory Flexibility Act below.
While some commenters expressed concern that the Department
underestimated the resources required to implement the regulations and
overestimated the administrative capacity that is available for
recipients that are elementary schools or secondary schools, no new or
additional data was provided that would change the Department's model
or baseline assumptions on these points. Changes to the model related
to nondiscrimination policies and grievance procedures are discussed
below.
Changes: None.
2. Taxpayer Costs
Comments: Commenters asserted that the July 2022 NPRM ignores the
cost of increased institutional compliance on State taxpayers, although
they did not suggest any changes in the Department's cost estimates on
that basis.
Discussion: Federal regulations often have a potential effect on
State taxpayers, but commenters did not provide data that would change
the Department's estimates. Moreover, the qualitative benefits of the
final regulations in terms of fulfilling Title IX's mandate, which
increases educational opportunities that have lasting, positive
economic effects, more than justify any increase in cost.
Changes: None.
3. Cost Estimate
Comments: Some commenters asserted the Department's cost
projections in the July 2022 NPRM mention a ``cost estimate'' but lack
concrete figures and fail to identify the financial burden the proposed
regulations would impose on recipients. Other commenters asserted that
the Department underestimated the costs associated with the proposed
regulations.
Discussion: The Department disagrees that the cost estimate lacks
concrete figures. The July 2022 NPRM contains a detailed analysis of
the estimated costs, starting at 87 FR 41551. Although the commenters
did not provide any supplementary data upon which the Department could
reasonably rely, the RIA of the final regulations includes a detailed
analysis of estimated costs, including changes that the Department made
in response to comments it received on some of the estimates in the RIA
that was included in the July 2022 NPRM. The Department's overall cost
estimates have not changed significantly; however, as a result of these
changes and other factors outside of the Department's control, such as
an increase in the number of affected entities and updated median
hourly wage rates, the Department has revised its July 2022 NPRM
estimated total monetary cost savings of between $9.8
[[Page 33851]]
million to $28.2 million, see 87 FR 41546, to an estimated total
monetary cost of $4.6 million to $18.8 million over ten years.
Changes: As explained in greater detail below, the Department has
revised its assumptions and estimates and made the following updates:
Updated the number of affected entities to align with the
most current data;
Updated median hourly wage to the most recent Bureau of
Labor Statistics data;
Increased the Department's assumption regarding the number
of incidents resulting in an offer of supportive measures; and
Increased the Department's assumption regarding the number
of hours required for Title IX Coordinators to review policies and
procedures, revise grievance procedures, and assess related training
requirements.
4. Definition of Sex-Based Harassment (Sec. 106.2)
Comments: Some commenters stated that the proposed definition of
``sex-based harassment'' would result in a significant increase in the
volume of complaints and increased litigation and liability costs. One
commenter stated the Department failed to consider more reasonable
alternatives to its proposed changes to the definition of ``sexual
harassment.'' Some commenters were concerned that the proposed
definition of hostile environment sex-based harassment would require
recipients to address more complaints through their Title IX grievance
procedures, which would impose an additional burden and expense on
recipients who revised procedures to comply with the 2020 amendments.
One of these commenters also noted that, especially at smaller
postsecondary institutions, this would divert attention from sexual
assault and quid pro quo harassment, which commenters said should be
the priority under Title IX.
Discussion: In the July 2022 NPRM, the Department explained at
length that it estimates that inclusion of the additional forms of sex
discrimination, including sex-based harassment, may result in a 10
percent increase in the number of investigations conducted annually.
See 87 FR 41550 & n.27. Commenters did not provide any data that would
change the Department's estimates. The Department also acknowledged in
the July 2022 NPRM that there may be some costs associated with
litigation. See 87 FR 41561. But commenters did not provide any data
that would change the estimates or the Department's recognition that
there may be some, but not extensive, costs associated with litigation
due to the final regulations.
The Department disagrees that the definition of hostile environment
sex-based harassment requires recipients to address significantly more
complaints or detracts attention from sexual assault or quid pro quo
harassment. At present, under the 2020 amendments, recipients are
obligated to address multiple forms of sex-based harassment, including
hostile environment, sexual assault, and quid pro quo harassment.
Commenters did not provide an adequate basis to reject the estimates
associated with the revised definition of hostile environment sex-based
harassment, which has been carefully crafted to cover conduct that
constitutes sex discrimination and fully effectuate Title IX's
nondiscrimination mandate. With respect to the definition of hostile
environment sex-based harassment, the Department carefully considered
public comments, which are addressed in the discussion of the
definition of ``sex-based harassment'' in Sec. 106.2.
The Department considered several alternatives to the final
definition of ``sex-based harassment,'' including maintaining the
definition of ``sexual harassment'' from the 2020 amendments and
different wording options for the definition of hostile environment
sex-based harassment and concluded that none captures the benefits of
the final definition in Sec. 106.2.
Changes: For explanation of the changes to the definition of ``sex-
based harassment,'' see the discussion of the definition of ``sex-based
harassment'' in Sec. 106.2.
5. Nondiscrimination Policy and Grievance Procedures (Sec. 106.8)
Comments: Some commenters asserted the Department underestimated
the time and cost it will take recipients to review the regulations and
revise their policies, procedures, and nondiscrimination statements.
Some commenters opposed as burdensome, duplicative, and impractical
the proposed requirement that a recipient include its notice of
nondiscrimination in each handbook, catalog, announcement, bulletin,
application form, and recruitment material. One commenter said the
Department failed to show there is a benefit that outweighs the costs
of requiring a printed notice rather than a link on a recipient's
website.
Discussion: The Department acknowledges that, as with any new
regulations, it will take some time to review requirements and revise
policies and procedures to align with those requirements. The
Department, exercising its expertise and applying its knowledge based
on past experiences with regulated entities taking time to come into
compliance with new requirements, provided detailed estimates of costs
related to reading and understanding the regulations; revising
policies; publishing notices of nondiscrimination; training Title IX
Coordinators; updating training materials; and other compliance-based
costs. See, e.g., 87 FR 41563.
In response to commenters who asserted that the costs of
implementing new Title IX procedures, and training on those procedures,
might be especially burdensome in the elementary school and secondary
school context and the vocational context, where the commenters assert
that the existing infrastructure for Title IX compliance is not as
robust, the Department has factored in those costs. See RIA, Cost
Estimates (Section 4.C), Review of regulations and policy revisions.
Although any predictive judgment about these types of compliance costs
includes an element of uncertainty, no commenter provided any statement
beyond speculation that the Department underestimated costs in any
meaningful way. Out of an abundance of caution, however, and to address
commenters' concerns, the model has been updated to reflect an increase
from 6 to 12 hours for a recipient's Title IX Coordinator to review the
regulations and revise policies, procedures, and notices of
nondiscrimination, which increases costs by $14.3 million in the first
year when revisions will be necessary.
Recognizing commenter concerns about burden, duplication, and
impracticability regarding publication of the notice of
nondiscrimination, the Department notes that the final regulations at
Sec. 106.8(c)(2) account for space and format limitations and provide
recipients flexibility by giving recipients the option to provide a
shorter version of the notice of nondiscrimination, if necessary. See
discussion of Sec. 106.8(c)(2). The short-form notice--a one-sentence
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, together with
a link to the full notice of nondiscrimination on the recipient's
website--provides the minimum information sufficient to ensure campus
community member awareness of a recipient's Title IX obligations
without unduly burdening recipient resources. In addition, a recipient
may include its
[[Page 33852]]
notice of nondiscrimination in its handbooks, catalogs, announcements,
bulletins, and application forms in the same manner it makes those
materials available; in print if it distributes those materials in
print, and electronically if it maintains those materials only
electronically. This option supports the Department's cost estimate for
publishing the notice of nondiscrimination. 87 FR 41563.
Changes: The Department has increased its estimate of the number of
hours necessary for a recipient's Title IX Coordinator to review
policies, revise grievance procedures as necessary, and assess related
training requirements from 6 hours to 12 hours.
6. Training Requirements (Sec. 106.8(d))
Comments: Some commenters asserted that the Department
underestimated the time and expenses related to training requirements
in the final regulations.
Discussion: The Department factored in time for the Title IX
Coordinator to assess training requirements as part of the estimates of
time needed for the Title IX Coordinator to review and revise policies,
grievance procedures, and notices of nondiscrimination. As discussed
above, the Department increased its estimate for these Title IX
Coordinator responsibilities from 6 hours to 12 hours. The Department
disagrees that its model in the July 2022 NPRM underestimated time
needed to provide training in the first year and in subsequent years.
87 FR 41552.
As explained in the discussion of Sec. 106.8(d) related to
frequency of training, several commenters asked the Department to
clarify how often training must be conducted and whether a recipient
would be required to retrain employees when their duties shift. In
response to these comments, the Department has modified Sec. 106.8(d)
to require training promptly upon hiring or a change of position that
alters an employee's duties under Title IX, and annually thereafter.
Training employees is accounted for in the model and does not
meaningfully change recipients' annual burden to provide training as
compared to the 2020 amendments.
The training obligations with respect to the notification
requirements in Sec. 106.44(c) are not unduly burdensome because the
information employees will have to learn and convey to students who
approach them is straightforward and can be incorporated into already-
required training sessions. The Department also reviewed the potential
effects of the training requirements on small entities and has
determined that the cost will not impose an unreasonable burden. See
RIA, Cost Estimates (Section 4.C), Revisions to training.
While the Department understands that recipients will need to
dedicate some additional resources for training under Sec. 106.8(d),
based on the Department's estimates, the benefits of comprehensive
training outweigh the costs. See discussion of Sec. 106.8(d) and the
benefits, time, and expense of training.
Changes: As explained in the discussion of Sec. 106.8(d) related
to frequency of training, the Department modified Sec. 106.8(d) to
require training promptly upon hiring or a change in position that
alters the employee's duties under Title IX, and annually thereafter.
7. Recordkeeping (Sec. 106.8(f))
Comments: Some commenters stated that proposed Sec. 106.8(f) will
significantly increase the administrative burden associated with
recordkeeping and case management, arguing that the proposed
regulations will cause an increase in reports, outreach, supportive
measures, investigations, informal resolutions, and determinations, all
of which will require recipients to create and maintain more records.
One commenter observed that many K-12 and smaller postsecondary
recipients do not have electronic recordkeeping systems.
Discussion: The Department acknowledges the commenters' concerns
regarding recordkeeping costs and notes that its estimates acknowledged
that not all recipients have electronic recordkeeping systems. See 87
FR 41558. In response to comments, and as explained in the discussion
of Sec. 106.8(f), the Department has removed the requirement in Sec.
106.8(f) that recipients maintain all records documenting actions the
recipient took to meet its obligations under Sec. Sec. 106.40 and
106.57. In addition, the final regulations require a recipient to make
its training materials available upon request for inspection by members
of the public, as opposed to making them publicly available on the
recipient's website. These changes will relieve some of the
administrative burden associated with recordkeeping.
In order to ensure that the Department's estimates fully capture
any burdens related to recordkeeping, the Department has not revised
its estimate of the burden associated with the requirements of Sec.
106.8(f). The Department believes that the revisions to Sec. 106.8(f)
combined with the retained burden estimate are sufficient to address
commenters' concerns regarding underestimates of the burden of
recordkeeping requirements.
Changes: As explained in more detail in the discussion of Sec.
106.8(f), the Department has modified Sec. 106.8(f) to remove the
requirement that recipients maintain all records documenting actions
the recipient took to meet its obligations under Sec. Sec. 106.40 and
106.57 and no longer require a recipient to make its training materials
publicly available on its website.
8. Application of Title IX (Sec. 106.11)
Comments: Some commenters asserted the Department underestimated
the costs associated with investigating a hostile environment that may
result from an incident that occurred outside of the United States.
Discussion: The Department acknowledges the commenters' feedback on
the costs associated with investigating hostile environment sex-based
harassment that may result from an incident that occurred outside of
the United States. To be clear, Sec. 106.11 does not require
recipients to investigate conduct that occurred outside of the United
States. That provision requires a recipient to address a sex-based
hostile environment under its education program or activity, even when
some conduct alleged to be contributing to the hostile environment
occurred outside of the recipient's education program or activity or
outside the United States. See Sec. 106.11 and the accompanying
discussion. As stated in the July 2022 NPRM, the Department does not
have a basis upon which to develop estimates for this change. 87 FR
41554. Commenters did not provide additional data that would lead the
Department to modify its cost projections. In light of the likely small
number of investigations of hostile environment sex-based harassment
resulting from extraterritorial conduct, the Department maintains its
current cost estimates.
Changes: None.
9. Duty To Address Sex Discrimination (Sec. 106.44)
Comments: Some commenters argued that the Department did not
adequately consider factors, explore sufficient data, and make
necessary estimates in connection with its removal of the actual
knowledge requirement for sexual harassment or allegations of sexual
harassment. One commenter stated that the Department must evaluate the
costs of removing the actual knowledge requirement together with
broadening the requirement that a recipient's administrators report and
act in response to ``anything that `may constitute sex discrimination.'
'' The
[[Page 33853]]
commenter stated the costs of compliance the Department must consider
would also include restrictions on speech to avoid liability.
Discussion: This preamble discusses the actual knowledge standard
in connection with Sec. 106.44(a), and the Department disagrees that
it did not adequately consider its estimates in connection with these
changes. As explained in the discussion of Sec. 106.44(c), in response
to comments, the notification requirements in Sec. 106.44(c) have been
modified to require an employee with notification duties to take action
when the employee has information about conduct that reasonably may
constitute sex discrimination under Title IX or this part. This change
was made to address commenters' concerns that the scope of reportable
conduct was unclear. In the Department's estimates, costs associated
with these notification requirements are considered as part of training
expenses. Other costs related to a recipient's duty to address sex
discrimination in its education program or activity are considered in
connection with the Title IX Coordinator's duties. Commenters did not
provide additional data that would lead the Department to modify its
cost projections related to its notification requirements.
The Department disagrees that the costs of compliance must include
restrictions on speech to avoid liability. As discussed throughout this
preamble, nothing in Title IX and the final regulations requires
recipients to infringe on constitutionally protected speech.
Changes: None.
10. Title IX Coordinator Obligations: Duty To Monitor (Sec. 106.44(b)
and (f))
Comments: Some commenters asserted that the Department
underestimated the cost of implementing proposed Sec. 106.44(b), in
part because new provisions in VAWA 2022 require postsecondary
institutions to conduct climate surveys, which the commenter stated
will likely be administered by Title IX offices.
One commenter stated that while some recipients already monitor
their education programs and activities for barriers to reporting sex
discrimination, the Department's assessment that the costs of
implementing proposed Sec. 106.44(b) would be de minimis is wrong
because it will take some recipients more time to perform tasks such as
developing and conducting assessments, evaluating the results, and
developing new initiatives or training to monitor and address barriers.
Other commenters stated that Title IX Coordinators would be unduly
burdened because, for example, they would not be able to satisfy all
the requirements that proposed Sec. 106.44(f) and other proposed
provisions would impose on them. In addition, they would not have the
capacity to oversee each person or office of a recipient that might
assist in performing the required steps and would not be permitted to
delegate administrative tasks related to fulfilling these duties.
Discussion: The Department acknowledges commenters' concerns about
potential compliance costs, including in light of other compliance
obligations related to VAWA 2022, but provisions in statutes other than
Title IX are beyond the scope of the final regulations. The Department
notes that the July 2022 NPRM provided suggestions and examples of how
a recipient could comply with Sec. 106.44(b) while acknowledging that
recipients vary in size and resources that may impact how they
implement this provision. 87 FR 41436. The Department continues to
believe that recipients should have the flexibility to determine which
strategies would be most appropriate and effective in their educational
setting.
In the July 2022 NPRM, the Department identified several low-cost
methods recipients may use to monitor for barriers to reporting, such
as incorporating questions designed to elicit information from students
and employees about barriers to reporting into existing training
materials and incorporating such questions into conversations with
students, employees, and others during roundtable discussions or
listening sessions with interested stakeholders. 87 FR 41558. The
Department also identified steps with a de minimis cost that a
recipient could take to remove these barriers, should they be
identified, such as reminding students, employees, and others during
trainings about the range of reporting options available at a
particular recipient or reporting an employee who discourages students
from reporting to human resources for violating the recipient's code of
ethics standards. Id. Commenters did not provide additional data that
would lead the Department to modify its cost projections related to
monitoring for barriers to reporting.
The Department acknowledges commenters' concerns that Sec.
106.44(f), alone and together with other provisions in the final
regulations, impacts and expands the scope of a Title IX Coordinator's
duties and responsibilities. The final regulations provide a role for a
recipient's Title IX Coordinator that centralizes duties, promotes
accountability, and enables effective Title IX compliance. However,
nothing in Sec. 106.44(f) precludes a recipient from authorizing its
Title IX Coordinator to delegate specific duties to one or more
designees as long as one Title IX Coordinator retains ultimate
oversight over the assigned duties. See Sec. 106.8(a).
A comprehensive response to possible sex discrimination is
essential to achieving Title IX compliance so that Title IX
Coordinators can respond to patterns, trends, and risk factors. The
Title IX Coordinator's oversight of a recipient's response to
individual reports and required action to address and prevent future
sex discrimination for all participants in a recipient's education
program or activity will help recipients provide a nondiscriminatory
educational environment as required by Title IX.
Changes: For an explanation of the changes to Sec. 106.44(b) and
(f), see the discussions of Sec. 106.44(b) and (f).
11. Notification Requirements (Sec. 106.44(c))
Comments: Some commenters stated that what they characterized as
the requirement that all employees in elementary schools and secondary
schools report Title IX violations would be expensive and that the
Department has not shown it is necessary.
One commenter asserted that recipients with significant research,
volunteer, community outreach, or land-grant programs often employ
individuals in temporary or cyclical positions and stated that such
employees may shift positions and take on new roles that cause them to
change from one notification category to another under proposed Sec.
106.44(c). The commenter stated that the costs of training, re-
training, and tracking the training status for all such employees on
their notification obligations would be a significant burden.
Another commenter suggested an alternative to proposed Sec.
106.44(c), which the commenter stated would be less costly for
recipients to implement. The commenter suggested requiring a recipient
to designate some of its employees as confidential employees and to
designate all other employees except employees in administrative
leadership positions as ``mandatory referrers.''
Discussion: As discussed above, the notification requirements in
Sec. 106.44(c) have been modified to require employees with
notification duties to take action when the employee has
[[Page 33854]]
information about conduct that reasonably may constitute sex
discrimination under Title IX or this part. An elementary school or
secondary school recipient must require all employees who are not
confidential employees to notify the Title IX Coordinator when the
employee has information about conduct that reasonably may constitute
sex discrimination under Title IX. This requirement provides greater
benefits and lower burdens as compared to the 2020 amendments, which
deemed a recipient to have ``actual knowledge'' when any employee of an
elementary school or secondary school had notice of allegations of
sexual harassment, but provided no clear indication of what they should
do with that information.
Costs associated with the final regulations' notification
requirements are considered as part of training expenses. The cost
associated with an employee's notification of the Title IX Coordinator
is de minimis. Costs related to the recipient's duty to address sex
discrimination in its education program or activity once the Title IX
Coordinator is notified of conduct that reasonably may constitute sex
discrimination are considered in connection with the Title IX
Coordinator's duties.
As explained in the discussion of Sec. 106.44(c), the Department
has modified and streamlined the notification requirements, which will
make the training requirements related to notification easier for
recipients. For recipients other than elementary schools and secondary
schools for whom all employees are treated the same, there are two
categories of non-confidential employees with notification requirements
when they have information about conduct that reasonably may constitute
sex discrimination: (1) employees who have authority to institute
corrective measures on behalf of the recipient or who have
responsibility for administrative leadership, teaching, or advising in
the recipient's education program or activity; and (2) all other non-
confidential employees. The first group must notify the Title IX
Coordinator when the employee has information about conduct that
reasonably may constitute sex discrimination under Title IX; the second
group must either notify the Title IX Coordinator or provide the
contact information of the Title IX Coordinator and information about
how to make a complaint of sex discrimination when the employee has
information about conduct that reasonably may constitute sex
discrimination under Title IX. These changes make notification less
costly than what would have been required by the proposed regulations.
Moreover, postsecondary recipients have the discretion to simplify
training even further by training all non-confidential employees to
notify the Title IX Coordinator.
With respect to the concern that recipients with significant
research, volunteer, community outreach, or land-grant programs often
employ individuals in temporary or cyclical positions that cause them
to change from one notification category to another, the Department
disagrees that the costs of training, re-training, and tracking the
training status for all such employees on their notification
obligations will be a significant burden under the final regulations.
Under Sec. 106.8(d)(1)(iii), a recipient must train all employees on
all applicable notification requirements under Sec. 106.44. A single
training can notify all employees at such recipients of the two
different notification requirements, so even if an employee were to
move between categories, they would have the requisite information
regarding their notification requirements. And, as mentioned above, a
recipient can choose to train all employees to notify the Title IX
Coordinator. In addition, the Department has revised Sec. 106.8(d) to
clarify that training must occur promptly when an employee changes
positions that alters their duties under Title IX or the final
regulations and annually thereafter so any changes in their
notification responsibilities would be covered by this training.
The Department acknowledges the commenter's suggestion to make all
non-confidential employees mandatory referrers, but the Department has
determined that the final regulations appropriately balance complainant
autonomy and a recipient's obligation to respond to sex discrimination.
The final regulations, as modified, will more comprehensively protect
students from conduct that reasonably may constitute sex discrimination
under Title IX.
Changes: For an explanation of the changes to Sec. 106.44(c), see
the discussion of Sec. 106.44(c).
12. Provision of Supportive Measures (Sec. 106.44(f)-(g))
Comments: Some commenters asserted that recipients are likely to
provide significantly more supportive measures under the proposed
regulations than they provide under the 2020 amendments because the
Department proposed to broaden the scope of Title IX. The commenters
asserted that the expansion of supportive measures will result in
increased costs related to the provision, coordination, and
implementation of supportive measures, and, in some cases, litigation.
One commenter stated that, under the 2020 amendments, many people
preferred supportive measures over filing a complaint and that it is
likely the number of individuals accessing supportive measures rather
than pursuing the formal grievance process is closer to at least ten to
one, and stated this number is likely to increase with additional
reports. The commenter did not provide any data or other support for
their estimation.
Discussion: Recipients have an obligation under Title IX to address
sex discrimination covered by the statute, including ensuring that
access to the recipient's education program or activity is not limited
or denied by such sex discrimination. Supportive measures are designed
to restore or preserve a party's access to the recipient's education
program or activity. 87 FR 41421. As such, supportive measures are
available for all forms of sex discrimination, which is consistent with
the proposed and final definition of ``supportive measures'' in Sec.
106.2 and with Sec. 106.44(a). 87 FR 41448. The Department also
clarifies that supportive measures include measures that a recipient
deems to be ``reasonably available,'' consistent with the definition of
``supportive measures.''
The Department recognizes that the number of incidents in which the
parties would be provided supportive measures would likely increase
compared to the 2020 amendments because of the broader range of
incidents triggering an offer of them under the final regulations
relative to the 2020 amendments. As a result, the Department estimates
increases in any related costs associated with providing supportive
measures.
As described in Section 4.C of the RIA below, the Department
estimates the number of incidents in which supportive measures are
offered (and the resulting number of instances in which such measures
are provided and their related costs). Specifically, in the July 2022
NPRM, 87 FR 41553-54, the Department estimated that there would be
approximately 1.5 times as many incidents in which supportive measures
are offered relative to the number of times a recipient initiated its
grievance procedures (e.g., if a recipient annually initiated its
grievance procedures 10 times, there would be 15 additional instances
in which a recipient would offer supportive measures, 90 percent of
which would be accepted). In reviewing these assumptions in light of
public
[[Page 33855]]
comment, the Department recognizes that this initial estimate may have
failed to capture the full range of incidents in which supportive
measures would be offered. The Department has therefore increased its
estimated factor from 1.5 to 2.0, effectively increasing the number of
instances in which supportive measures would be offered and, as a
result, provided, by 33 percent. The Department has retained its
initial estimate that individuals will accept 90 percent of the
supportive measures offered to them and of the cost of providing such
measures ($250 per incident). For additional explanation of supportive
measures, see the discussion of Sec. 106.44(g).
Changes: The Department has increased the assumptions related to
the number of incidents in which the parties would be offered
supportive measures by 33 percent.
13. Impartial Review of Supportive Measures (Sec. 106.44(g)(4))
Comment: One commenter asserted that proposed Sec. 106.44(g)(4),
which would require an appropriate, impartial employee to consider
challenges to supportive measures, would be difficult to implement at
small institutions where often the Title IX Coordinator is the only
employee trained in the requirements of Title IX. The commenter
asserted that the administrative burden imposed by this provision would
not be justified in the context of providing supportive measures.
Discussion: The Department disagrees with the commenter's
assumption that Sec. 106.44(g)(4) would require recipients to develop
an entire administrative structure; it only requires, at minimum,
assigning one person to handle challenged decisions. The Department
estimates that providing an impartial employee to consider such
challenges 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 savings from other
proposed changes (e.g., changes to the grievance procedure
requirements) and from the anticipated reduction in instances of sex
discrimination. Moreover, the importance of this independent review
outweighs any burdens it may impose. For additional explanation of the
impartial review of supportive measures, see the discussion of Sec.
106.44(g)(4).
Changes: None.
14. Grievance Procedures (Sec. Sec. 106.45 and 106.46)
Comments: Some commenters, including a system of State
postsecondary institutions, supported the proposed regulations as more
time- and cost-effective than the existing regulations.
Other commenters disagreed with the Department's cost estimates of
the new grievance procedures. For example, some commenters expressed
concern that the proposed requirements for grievance procedures would
place unmanageable administrative burdens on a recipient. Some
commenters suggested the regulations would detract from a recipient's
efforts to identify, prevent, and remedy sex discrimination in its
education program or activity. And some commenters expressed concern
that having one set of grievance procedures to address sex-based
harassment and another set for other forms of sex discrimination would
create confusion for recipients as to which requirements apply to which
complaints.
One commenter said the revised definition of ``sex-based
harassment'' and the application of Sec. 106.45 to all other sex
discrimination complaints would be more burdensome than the 2020
amendments.
Other commenters argued that, in connection with changes to the
grievance procedures, any short-term financial savings to recipients
would be offset by costs associated with respondents' diminished due
process rights and the lasting economic and intangible costs related to
respondents who are erroneously found responsible for sexual misconduct
and expelled or dismissed.
Discussion: The Department disagrees with some commenters'
assertions that respondents have diminished due process rights under
the requirements related to grievance procedures and that the grievance
procedures result in respondents being erroneously found responsible
for sexual misconduct. As discussed in more detail in the preamble, the
final regulations appropriately and fairly safeguard the due process
rights of both complainants and respondents and include requirements in
grievance procedures that ensure fair, transparent, and reliable
outcomes. Specifically, the final regulations provide for notice of the
allegations; an opportunity for the parties to respond to the
allegations; an adequate, reliable, and impartial investigation; and an
objective evaluation of all relevant and not otherwise impermissible
evidence. Additional procedures are required for allegations of sex-
based harassment involving a student party at postsecondary
institutions.
The Department also observes that, under Sec. Sec. 106.45 and
106.46, recipients retain significant flexibility and discretion,
including regarding decisions to implement grievance procedures in a
cost-effective manner. That flexibility and discretion extends to
designating the reasonable timeframes that will apply to grievance
procedures; using a recipient's own employees as investigators and
decisionmakers or outsourcing those functions to contractors; using an
individual decisionmaker or a panel of decisionmakers; offering
informal resolution options; determining which disciplinary sanctions
to impose following a determination that sex discrimination occurred;
and selecting appeal procedures. The final regulations also remove
requirements and prohibitions imposed by the 2020 amendments that
stakeholders identified as overly prescriptive, restrictive, and time-
consuming, including requirements related to written notice in
elementary schools and secondary schools, the requirement to hold a
live hearing (although recipients may still choose to hold a live
hearing), the prohibition on the single-investigator model, and the
requirement to create an investigative report (although recipients may
still choose to create an investigative report).
For these reasons, the final regulations account for both the
administrative concerns recipients have raised and the need to ensure a
nondiscriminatory educational environment through procedures that are
designed to promote fair, accurate outcomes in sex discrimination
complaints. The 2020 amendments included requirements that applied only
to sexual harassment complaints, which invited variations in the
grievance procedures recipients implemented for other types of sex
discrimination. The final regulations, which apply to all forms of sex
discrimination and include discrete additional requirements for sex-
based harassment complaints involving students at postsecondary
institutions, provide greater clarity and more streamlining under one
set of requirements for most of a recipient's Title IX compliance
obligations than what is afforded under the 2020 amendments.
Although the streamlining and clarity that the final regulations
afford will result in recipients addressing all sex discrimination
complaints under Sec. 106.45, and if applicable Sec. 106.46, the
[[Page 33856]]
Department disagrees that this approach is unreasonably costly or
burdensome in a manner that outweighs the benefits of ensuring that all
sex discrimination complaints are resolved through grievance procedures
that the Department determined are designed to ensure fair and reliable
outcomes that meet the requirements of Title IX. See 87 FR 41546-47,
41554-58. In response to the commenter that stated that compliance with
the requirements of the 2020 amendments necessitated additional staff
and generated significant paperwork, the Department notes that the
final regulations include specific changes to the requirements of the
2020 amendments that aim to make grievance procedures less burdensome
without reducing their efficacy or fairness. For example, the final
regulations leave to a recipient's discretion whether to provide a
written notice of allegations outside the context of complaints of sex-
based harassment involving a postsecondary student. See Sec.
106.45(c). The final regulations also give postsecondary institutions
the discretion to assess credibility through a live hearing or through
another live questioning process when investigating complaints of sex-
based harassment involving a postsecondary student. See Sec.
106.46(f)(1). For further explanation of the costs and burdens related
to live hearings with questioning by an advisor, see the discussions of
Sec. 106.46(f) and (g).
Further, Sec. Sec. 106.45 and 106.46 provide the benefit of
outlining clear requirements for grievance procedures to all parties
and recipients. Additionally, the final regulations provide grievance
procedures that ensure fair and reliable outcomes in all types of sex
discrimination complaints, including sex-based harassment complaints
that involve a postsecondary student party. Through its enforcement
work, OCR has recognized that reasonably prompt timeframes and an
adequate, reliable, impartial investigation, among other requirements
in Sec. Sec. 106.45 and 106.46, are essential to ensuring a prompt and
equitable resolution for all sex discrimination complaints, including
sex-based harassment. The Department also heard from a range of
commenters, including recipients and entities that represent them, that
the proposed grievance procedure requirements were well suited to
address sex discrimination complaints in their settings. Accordingly,
the Department has determined that the benefits of requiring recipients
to institute grievance procedures consistent with Sec. 106.45, and if
applicable Sec. 106.46, to resolve sex discrimination complaints
justify the minimal burdens of compliance.
The Department acknowledges that Title VII and Title IX impose
different requirements in some respects and that some recipients will
need to comply with both Title VII and Title IX. Although commenters
have noted certain differences, they have not explained why it would be
impossible or unduly burdensome for a recipient to comply with both
standards. There is no inherent conflict between Title VII and Title
IX, including in the final regulations. For further explanation, see
the discussion of Framework for Grievance Procedures for Complaints of
Sex Discrimination (Section II.C).
Changes: For an explanation of the changes to specific provisions
of grievance procedures in Sec. Sec. 106.45 and 106.46, see the
discussions of the relevant provisions (Section II.D-E).
15. Regulatory Stability and Reliance Interests
Comments: Some commenters stated that the proposed regulations
would be the third set of Title IX regulations in eleven years and that
each revision requires a recipient to adopt new policies that students
and employees must learn and understand.
Discussion: The Department shares commenters' concerns about the
importance of regulatory stability and the need for recipients and
members of their educational community to have clear information about
their rights and responsibilities under Title IX. By retaining and
enhancing many of the requirements in the 2020 amendments, the final
regulations provide the regulatory stability that is necessary to
promote broad understanding of Title IX's nondiscrimination mandate and
the rights and responsibilities it confers in educational settings that
receive Federal financial assistance.
The Department acknowledges that a recipient may have relied on or
incorporated the 2020 amendments into its policies, practices, or
procedures that affect students and employees, including collective
bargaining agreements. The Department considered such reliance
interests and ultimately determined that certain proposed changes were
warranted; however, mindful of such reliance interests, the final
regulations either maintain the requirements of the 2020 amendments or
make certain provisions permissive rather than mandatory. See, e.g.,
Sec. Sec. 106.45(d)(1) and 106.46(g). The Department also notes that
collective bargaining agreements generally recognize an entity's
obligation to comply with applicable laws and contain procedures for
consulting with the union and renegotiating provisions that conflict
with applicable laws.
While such negotiations may cause disruptions, the Department has
determined that the benefits of the final regulations--both in terms of
ensuring that recipients comply with Title IX's nondiscrimination
mandate and ensuring that all participants in the grievance procedures
receive the process they are due--justify the burdens caused by any
renegotiation of a recipient's collective bargaining agreements.
Moreover, commenters did not provide, and the Department does not have,
data from which to estimate how many collective bargaining agreements
would need to be renegotiated and therefore has not included the costs
of such renegotiations in its cost projections.
Changes: None.
16. Training for Decisionmakers (Sec. 106.46(f)(4))
Comments: One commenter objected to proposed Sec. 106.46(f)(4) and
asserted it would require extra training for decisionmakers that would
increase costs and outweigh any benefits.
Discussion: The Department disagrees that final Sec. 106.46(f)(4)
will result in an increase in recipient costs to implement required
decisionmaker training. Recipients are already required to train
decisionmakers under the 2020 amendments. While the content of the
training will be adjusted, it is unlikely that the length of training
would have to change for decisionmakers in connection with Sec.
106.46(f)(4); therefore, any associated burden for these individuals
would not change as a result of the final regulations. The benefits of
training decisionmakers, including by ensuring that grievance
procedures are equitable and ensure transparent and reliable outcomes,
justify any administrative cost. For further explanation of required
changes to the content of training and any associated costs and
burdens, see the discussion of Sec. 106.8(d).
Changes: None.
17. Single-Investigator Model (Sec. 106.45(b)(2))
Comments: Some commenters supported the single-investigator model
permitted by Sec. 106.45(b)(2) on the grounds that it would allow
recipients to shorten grievance procedure timelines, allow the
individual with the most knowledge of the investigation to make the
determination, and increase efficiency in scheduling. One commenter
stated that although the
[[Page 33857]]
Department and commenters asserted that small recipients struggle with
the administrative capacity to handle grievance procedures, the
Regulatory Impact Analysis in the 2020 amendments indicated that the
regulatory changes adopted in 2020 would generate additional costs to
small IHEs of only approximately 0.28 percent of annual revenue. The
commenter further stated that the Department estimated the average
amount of time for an IHE investigator to perform their duties as
between 10 and 18 hours per complaint and between 2 and 8 hours for
each decisionmaker, leading the commenter to question the Department's
conclusion that the prohibition on the single-investigator model
results in burdensome costs or elongated complaint resolution
processes.
Discussion: The Department's decision to permit the single-
investigator model was not based solely on the number of hours required
for a decisionmaker to perform their tasks. As explained in the July
2022 NPRM, the single-investigator model supports quality grievance
procedures and decision-making, and recipients expressed their belief
that the single-investigator model resulted in more students seeking
institutional support and resolution of complaints. 87 FR 41467. In
light of these benefits, the Department determined that recipients
should have the option of utilizing the single-investigator model to
resolve complaints of sex discrimination under Title IX. For further
explanation of the single-investigator model, see the discussion of
Sec. 106.45(b)(2).
Changes: None.
18. Pregnancy or Related Conditions (Sec. Sec. 106.40 and 106.57(e))
Comments: Some commenters stated that the Department did not
adequately estimate the costs of requiring recipients to provide
reasonable modifications for students and lactation spaces to students
and employees, which the commenters asserted would amount to
significant costs for many recipients. One of these commenters stated
the Department failed to identify how many schools currently offer a
lactation space and reasonable modifications for lactation, or how many
lactation spaces the proposed regulations would require. Another
commenter stated that the Department must account for reasonable
modifications that would be required for parents (other than those who
are pregnant or experiencing pregnancy-related conditions). Some
commenters raised concerns that the proposed regulations' requirements
regarding notifying students of information regarding pregnancy rights
under Sec. 106.40(b)(2) or (b)(3)(i) were unduly costly or burdensome
to recipients because, for example, they would require additional staff
time and training. Some commenters asked about the impact and costs,
including litigation costs and costs related to abortion, of the
proposed regulations on postsecondary institutions, medical schools,
and hospitals.
Discussion: The Department views the final regulations regarding
reasonable modifications for students and lactation spaces for students
and employees as best effectuating Title IX by preventing sex
discrimination and ensuring equal access to a recipient's education
program or activity for students who are pregnant or experiencing
pregnancy-related conditions. Although there are limited data
quantifying the economic impacts of sex discrimination, the Department
determined, based on its review of public comments, that barriers
related to pregnancy or related conditions can prevent students from
obtaining a high school diploma, pursuing higher education, or
obtaining a postsecondary degree, which limits their economic
opportunities and may have long-term or generational impacts.
The Department does not anticipate significant costs to recipients
based on the final regulations related to reasonable modifications for
students and lactation spaces for students and employees. For example,
the Department points out that some costs noted by commenters are not
new given recipients' obligation since 1975 to provide leave in
connection with pregnancy, childbirth, termination of pregnancy, and
related recovery. See 40 FR 24128. Given these existing obligations,
some commenters are likely overstating the increased costs or burdens
for implementing reasonable modifications. Recipients have existing
obligations that are similar to those under Sec. 106.40(b)(3)(ii),
which require a recipient to make certain modifications to a policy,
practice, or procedure, such as providing a student a larger desk,
allowing more frequent bathroom breaks, or permitting temporary access
to elevators. 87 FR 41560. As stated in the July 2022 NPRM, 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. Id. As such, the Department does not anticipate that the
required steps for compliance with the ``reasonable modifications
because of pregnancy or related conditions'' requirement under Sec.
106.40(b) would be significantly more costly than under the prior OCR
interpretation of a recipient's duties. Nor do the final regulations,
which provide more clarity regarding a recipient's responsibilities in
connection with reasonable modifications, change the cost estimates in
the model. Even if a recipient were to incur some additional cost due
to its new awareness of its previous responsibilities, the Department
disagrees that any such minimal additional costs or burdens would
outweigh the benefits of clarifying a recipient's obligation to
provide, and ensuring that students are able to access, reasonable
modifications for pregnancy or related conditions.
In connection with lactation spaces, the final regulations require
the minimum acceptable standards for privacy, sanitation, and
functionality necessary for students and employees to attend to their
lactation needs at school, be free from discrimination, and maintain
equal access to the recipient's education program or activity. See 87
FR 41522. In addition, nearly all recipients under Title IX are already
required to provide a virtually identical physical space for employees
under the PUMP Act, 29 U.S.C. 218d.\101\ Id. Additionally, as explained
below, many State and local laws also require recipients to provide
lactation spaces. Although it is possible that the regulations'
clarification that a lactation space must be available for both
students and employees may result in an increase in demand for such a
space, any such increase would likely result in a de minimis impact on
costs as distributed over all recipients over time. The final
regulations do not require recipients to make any particular changes to
facilities. In particular, they do not dictate a precise number of
spaces that every facility must have as this will be a fact-specific
determination that may ebb and flow over time based on factors such as
how many people need to use such a space, when, and where on the
recipient's campus. As explained in the July 2022 NPRM, the Department
anticipates that a recipient currently without a designated lactation
space would likely be able to comply with Sec. 106.40(b)(3)(v) using
existing space at minimal cost, partly because there is no requirement
that a lactation
[[Page 33858]]
space be a particular size, shape, or include features other than being
private and clean, and not a bathroom. See 87 FR 41559-60. Lactation
spaces do not need to be designated as such for 24 hours a day, so
there is no need to create new space. If a recipient chose to retrofit
a space, for example by adding keypad locks or a chair to an existing
space, such costs are minimal. Further, it is the Department's view
that these de minimis costs are outweighed by the benefits of requiring
a recipient to provide an appropriate space for a student or employee
who is lactating, including allowing them to remain in school or
employment during the early months or years of a child's life, which
helps eliminate a sex-based barrier to education or employment.
---------------------------------------------------------------------------
\101\ Although the PUMP Act, which expanded the types of
employees entitled to lactation time and space under the FLSA, was
signed into law on December 29, 2022 (Pub. L. 117-328), recipients
have been subject to similar lactation time and space requirements
since March of 2010 as part of the Affordable Care Act amendment to
the FLSA that added (r)(1) to Sec. 7. Public Law 111-148, 124 Stat
119 (2023).
---------------------------------------------------------------------------
With respect to reasonable modifications required for parents
(other than those who are pregnant or experiencing pregnancy-related
conditions), the Department notes that the final regulations require
that recipients provide reasonable modifications only to students who
are pregnant or experiencing pregnancy-related conditions and not to
their partners, family members, or others not pregnant or experiencing
pregnancy-related conditions. Accordingly, the Department did not
analyze the costs of modifications not imposed by the final
regulations.
Costs associated with the final regulations' notification
requirements under Sec. 106.40(b)(2) and (b)(3)(i) are considered as
part of the RIA below. See RIA, Cost Estimates (Section 4.C), Revisions
to training. The cost associated with an employee or Title IX
Coordinator informing a student of their rights is de minimis, and the
latter is considered in connection with the Title IX Coordinator's
duties. Training costs, including those that would address the employee
actions required under Sec. 106.40(b)(2) and (b)(3)(i), are explained
above in the discussion of training requirements under Sec. 106.40(d).
Sections 106.40 and 106.57(e) of the final regulations do not
require a recipient to provide or pay for any benefit or service,
including the use of facilities, related to abortion; therefore,
commenters' concerns regarding abortion-related costs are unfounded.
For further explanation, see the discussion of the definition of
``pregnancy or related conditions'' in Sec. 106.2 (Section III). Other
costs identified by the commenters, such as costs to taxpayers due to
increased litigation were speculative or unrelated to any requirements
of the pregnancy provisions.
Changes: None.
19. Scope of Sex Discrimination (Sec. 106.10)
Comments: Some commenters argued that the Department failed to
calculate the financial, health, administrative, and legal costs to
society that commenters asserted would result from the Department's
proposed changes. For example, some commenters said the Department
failed to consider the effects on recipients of expanding the scope of
the regulations to include gender identity discrimination, including an
increase in Title IX complaints.
Other commenters asserted that the Department must analyze the
benefits and burdens of its proposed regulations with more granularity
(i.e., benefits and burdens on men versus women).
Discussion: 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 bases of discrimination explicitly referenced in
the 2020 amendments, the non-monetary benefits of providing clarity and
fulfilling the broad scope of Title IX's protections justify the costs
associated with the implementation of these robust protections. See 87
FR 41562.
The Department has considered the benefits and burdens of the final
regulations and their impact on all individuals on the basis of sex.
While the Department strongly agrees that recipients have a legitimate
interest in protecting all students from sex discrimination, it
disagrees that such goals are inconsistent with Sec. 106.10. The
Department disagrees that by recognizing discrimination based on gender
identity as sex discrimination, it has disregarded potential harms to
students or employees and disagrees that additional granularity to
quantify benefits and burdens is necessary. For further explanation,
see the discussions of Sec. Sec. 106.10 and 106.31(a)(2).
The Department estimates that inclusion of these bases of sex
discrimination within the scope of the Department's Title IX
regulations may result in a 10 percent increase in the number of
investigations conducted annually. See 87 FR 41550 & n.27. In the July
2022 NPRM, the Department also acknowledged that there may be some
costs associated with litigation and the Department disagrees with
commenters who suggested that litigation costs would increase
significantly due to the final regulations. 87 FR 41561. Commenters did
not provide any data that would change the estimates or the
Department's recognition that there may be some, but not extensive,
costs associated with litigation due to the final regulations. It is
the Department's view that the final regulations provide clear
requirements for recipients to comply with Title IX.
Changes: None.
20. Menstruation or Related Conditions
Comments: The Department received many comments requesting that
menstruation or related conditions be included within the scope of the
Title IX regulations, as discussed elsewhere in this preamble.
Discussion: The Department clarifies in this preamble that
menstruation or related conditions is included within the scope of
Title IX as defined in Sec. 106.10. The Department recognizes that
clarifying the scope of Title IX could result in a marginal increase in
costs to recipients, especially those recipients that limited the
application of their Title IX policies to those forms of conduct
explicitly referenced in the 2020 amendments, but the non-monetary
benefits of providing clarity and fulfilling the broad scope of Title
IX's protections justify the costs associated with the implementation
of these robust protections. As noted in the discussion of Sec.
106.10, these regulations do not require recipients to incur the cost
of providing menstrual products.
Changes: None.
21. Other
Comments: Some commenters stated that, if the Department requires
religious educational institutions to prepare a request for religious
exemption, the Department would have to calculate the costs to
religious educational institutions and to the Department. They also
said that the Department should account for costs to religious
educational institutions and their students if a request for a
religious exemption is denied. One commenter stated that any proposed
changes to the existing regulations would impose additional regulatory
costs and paperwork burdens which would not justify making a change to
the religious exemption.
Other commenters argued that the Department did not take into
consideration the costs to religious students in non-religious
institutions who will feel pressure to violate their religious beliefs,
and who may choose not to attend or work at federally funded schools
because of their sincerely held religious beliefs.
Discussion: The Department is not proposing any changes to Sec.
106.12 related to religious exemptions, and nothing in the final
regulations alters
[[Page 33859]]
assurances that specific religious institutions have already received
from OCR. Religious institutions are not required to seek assurance of
a religious exemption before asserting it, although they may do so
voluntarily, and the Department does not envision an increase in such
requests. The final regulations do not require religious students or
employees to change their beliefs, because the regulations address
conduct that constitutes sex discrimination, which is prohibited by
Title IX, and not religious beliefs. Section 106.6(d) explicitly states
that nothing in the regulations requires a recipient to restrict rights
protected under the First Amendment or other constitutional provisions.
The Department, likewise, must act in accordance with the U.S.
Constitution. In addition, the Department notes that Title IV of the
Civil Rights Act of 1964, which is enforced by the Department of
Justice's Civil Rights Division, specifically prohibits public schools
and higher education institutions from discriminating based on
religion. For further information on the First Amendment and religious
exemptions from Title IX, see the discussion of Hostile Environment
Sex-Based Harassment--First Amendment Considerations (Sec. 106.2)
(Section I.C) and the discussion of Religious Exemptions (Section VII).
Changes: None.
B. Regulatory Impact Analysis (RIA)
Under Executive Order 12866,\102\ as amended by Executive Order
14094, 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.\103\ Section 3(f) of Executive Order 12866, as amended by
Executive Order 14094, defines a ``significant regulatory action'' as
an action likely to result in regulations that may--
---------------------------------------------------------------------------
\102\ 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.
\103\ Since the July 2022 NPRM, Executive Order 12866 has been
amended and supplemented by Executive Order on Modernizing
Regulatory Review, Exec. Order No. 14094, 88 FR 21879 (Apr. 6,
2023), https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.
---------------------------------------------------------------------------
(1) Have an annual effect on the economy of $200 million or more
(as of 2023 but adjusted every 3 years by the Administrator of the
Office of Information and Regulatory Affairs (OIRA) for changes in
gross domestic product), or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
Tribal governments or communities);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise legal or policy issues for which centralized review would
meaningfully further the President's priorities, or the principles
stated in the Executive Order, as specifically authorized in a timely
manner by the Administrator of OIRA in each case.
This final regulatory action is ``significant'' and therefore
subject to review by OMB under section 3(f)(4) of this Executive Order
because it raises legal or policy issues for which centralized review
would meaningfully further the President's priorities, or the
principles stated in the Executive Order.
The Department has also reviewed the regulations under Executive
Order 13563,\104\ 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--
---------------------------------------------------------------------------
\104\ 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
(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.'' OIRA 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 determined that the
benefits of the final 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 determined that the final regulations are
consistent with the principles in Executive Order 13563.
The Department has also determined that this regulatory action
would not unduly interfere with State, local, territorial, 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
the 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 \105\ and Executive Order 14021 \106\ to review its
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 regulations
based on Federal case law under Title IX, its experience in
enforcement, and feedback OCR received from stakeholders, including
during the June
[[Page 33860]]
2021 Title IX Public Hearing \107\ and listening sessions. More than
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
more than 30,000 written comments \108\ 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 complainants,
respondents, 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. Based on this review, the Department concluded
that it was necessary to amend 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 intends these changes to improve and promote educational
environments free of sex discrimination in a manner that recognizes
fairness and safety concerns.
---------------------------------------------------------------------------
\105\ 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.
\106\ 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.
\107\ 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.
\108\ 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 (last visited Mar. 20,
2024).
---------------------------------------------------------------------------
The Department considered feedback received from many stakeholders
during the June 2021 Title IX Public Hearing and numerous OCR listening
sessions, as well as comments received in response to the July 2022
NPRM, stating that the 2020 amendments include onerous requirements for
sexual harassment grievance processes that are unnecessarily
adversarial in nature--threatening to decrease students' willingness to
make complaints or fully participate in the grievance process. These
stakeholders also stated that the requirements in the 2020 amendments
for sexual harassment grievance processes 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 educational environment. During the
June 2021 Title IX Public Hearing, some stakeholders expressed support
for the 2020 amendments, remarking that the requirements governing a
recipient's sexual harassment grievance process 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 the grievance process
for formal complaints of sexual harassment). Many stakeholders
expressed concerns regarding the scope of the regulatory definition of
``sexual harassment'' from the 2020 amendments, 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 amends its Title IX regulations to address the
concerns raised by stakeholders and anticipates that the final
regulations will 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 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;
Clarifying that, unless otherwise permitted by 20 U.S.C.
1681(a)(1) through (9) and the corresponding regulations at Sec. Sec.
106.12-106.15, 20 U.S.C. 1686 and its corresponding regulation Sec.
106.32(b)(1), or Sec. 106.41(b), 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.
As discussed in more detail in the following sections, it is the
Department's belief that the 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 final regulations. Although many of the associated costs and
benefits are not easily quantifiable, the Department concludes that the
benefits derived from the final regulations justify 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 17,900 LEAs, more than
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 final regulations
introduce new obligations and clarify existing obligations of entities
subject to the regulations to promote an educational environment free
from sex discrimination. The final regulations require recipients to
adopt grievance procedures that provide for fair, prompt, and equitable
resolution of complaints of sex discrimination and take other necessary
steps to provide an
[[Page 33861]]
educational environment free from sex discrimination; clarify that
Title IX's prohibition on sex discrimination includes sex-based
harassment in the form of quid pro quo harassment, hostile environment
harassment, and four specific offenses; and clarify that sex
discrimination includes discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity. The Department expects that the final
regulations will 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.
The final regulations will provide numerous important benefits some
of which are difficult to quantify. Still, it is the Department's view
that the changes just described, in addition to others discussed more
fully throughout the RIA and preamble, will 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., Ctrs. for Disease Control & Prevention, Fast
Facts: Preventing Sexual Violence, https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html (last visited Mar. 20,
2024) (describing the economic burden of sexual violence involving
physical contact on survivors 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 survivors 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 final regulations.
Due to the large number of affected recipients (more than 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 final
regulations. 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 final regulations will
result in an estimated net cost of $18.8 million over ten years at a 7%
discount rate and an estimated net cost of $4.6 million over ten years
at a 3% discount rate. This is equivalent to an annualized cost of
between $543,504 and $2,671,136 depending on the discount rate, over
ten years. The final regulations are expected to result in estimated
costs of $98,505,145 in the first year following publication of the
final regulations, and $12,038,087 in cost savings each year in
subsequent years.
------------------------------------------------------------------------
Net annual
Year cost
------------------------------------------------------------------------
Year 1.................................................. $98,505,145
Year 2.................................................. (12,038,087)
Year 3.................................................. (12,038,087)
Year 4.................................................. (12,038,087)
Year 5.................................................. (12,038,087)
Year 6.................................................. (12,038,087)
Year 7.................................................. (12,038,087)
Year 8.................................................. (12,038,087)
Year 9.................................................. (12,038,087)
Year 10................................................. (12,038,087)
Total Net Present Value (NPV), 7%....................... 18,760,944
Annualized, 7%.......................................... 2,671,136
Total NPV, 3%........................................... 4,636,200
Annualized, 3%.......................................... 543,504
------------------------------------------------------------------------
As discussed in the Cost Estimates (Section 4.C), the Year 1 costs
include both one-time costs associated with reviewing and making
necessary changes to policies, procedures, and training to implement
the final regulations, and on-going costs associated with requirements
such as training for Title IX Coordinators, the provision of supportive
measures, investigations and adjudications, appeals and informal
resolutions, recordkeeping, and monitoring and addressing barriers to
reporting sex discrimination. In addition to these estimated Year 1
costs, the Department estimated cost savings in Years 2 through 10,
which arise largely from the additional flexibility that recipients
will have to design and implement grievance procedures consistent with
Title IX under Sec. 106.45, and if applicable 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 Final Regulations
This final regulatory action will address the potential gaps in
coverage within the regulatory framework that have been raised by
stakeholders and commenters and observed by the Department. These
include, but are not limited to, 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 obligations toward students and employees who
are pregnant or experiencing pregnancy-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 final 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 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 inside 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 education program or
activity can undermine the recipient's educational environment for the
entire community. The final regulations 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 final regulations will 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
[[Page 33862]]
participate in the recipient's education program or activity. The
Department anticipates those benefits will be realized based on several
changes to the regulations. First, the final regulations clarify the
scope of Title IX's protection from sex discrimination for students,
employees, 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 final
regulations set out the contours of a recipient's obligation to take
action to address sex discrimination, including requiring a recipient's
Title IX Coordinator to monitor its education program or activity for
barriers to reporting sex discrimination and take steps reasonably
calculated to address those barriers. Third, the final regulations
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 and this part. Fourth, the final
regulations revise the notification requirements for a recipient,
helping to ensure that specific employees notify the Title IX
Coordinator when they have information about conduct that reasonably
may constitute sex discrimination under Title IX or this part in the
recipient's education program or activity. Fifth, the final regulations
help ensure the effective provision and implementation of supportive
measures, as appropriate, to all complainants and respondents and
clarify that when a recipient determines that sex discrimination has
occurred, the recipient must provide remedies, as appropriate, to a
complainant and 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
final regulations revise the requirements for grievance procedures to
provide for the prompt and equitable resolution of complaints of any
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. Seventh,
the final regulations provide clarity on the rights of students and
employees who are pregnant or experiencing pregnancy-related conditions
including, for example, by requiring a recipient to inform students of
the recipient's obligations, making reasonable modifications to its
policies, practices, or procedures as necessary to prevent sex
discrimination and to ensure a student's 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 access to an
appropriate space for lactation. Finally, the final regulations clarify
that, unless otherwise permitted by 20 U.S.C. 1681(a)(1) through (9)
and the corresponding regulations at Sec. Sec. 106.12-106.15, 20
U.S.C. 1686 and its corresponding regulation Sec. 106.32(b)(1), or
Sec. 106.41(b), 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.
The Department expects that the final regulations, when reviewed in
their totality, will reduce the likelihood of sex discrimination and
the overall prevalence of sex discrimination in recipients' educational
settings. Although the Department cannot entirely quantify the economic
impacts of these benefits, the benefits noted above are substantial and
far outweigh the estimated costs of the final regulations.
4. Costs of the Final Regulations
The Department's analysis reviews the Department's data sources,
describes the model used for estimating the likely costs associated
with the final 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 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 Ctrs. for Disease Control & 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 final regulations reduce the
harms of sex discrimination in multiple ways, including the following:
First, final Sec. 106.44 clarifies a recipient's obligation to
take action to address sex discrimination, including sex-based
harassment, and expressly covers more conduct than Sec. 106.44 under
the 2020 amendments. Specifically, the final regulations require a
recipient with knowledge of conduct that reasonably may constitute sex
discrimination in its education program or activity to respond promptly
and effectively, regardless of whether a complaint is made. Under the
2020 amendments, 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 and Sec. 106.44 is
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 implemented changes will aid the recipient in
reducing--and ultimately eliminating--sex discrimination in its
education program or activity. Any initial, short-term costs associated
with the implemented change are expected to be both minimal and offset
in the longer term by reduced incidence of sex discrimination. The
final regulations will 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 firmly quantify the potential
reduction in incidents of sex-based harassment or other forms of sex
discrimination.
Second, final Sec. 106.44(f)(1)(ii) and (g) make clear that upon
being notified of conduct that reasonably may constitute sex
discrimination under Title IX, including sex-based harassment and
prohibited retaliation, a Title IX Coordinator must offer and
coordinate supportive measures, as appropriate, to the complainant or
respondent. Final Sec. 106.44(g) also clarifies that for allegations
of sex discrimination other than sex-based harassment or retaliation, a
recipient's provision of supportive measures does not require the
recipient, its employee, or any other person authorized to provide aid,
benefit, or service on the recipient's behalf to alter the alleged
discriminatory conduct for the purpose of providing a supportive
measure. As the final requirement regarding supportive measures covers
prohibited retaliation as well as other forms of sex discrimination not
addressed by the
[[Page 33863]]
2020 amendments, the Department recognizes that the number of incidents
in which the parties will seek supportive measures will likely increase
compared to the 2020 amendments, as will any related costs in providing
those supportive measures. The Department includes costs associated
with such an increase in its model below. As explained in the
discussion of supportive measures below, the Department expects that
there will be little impact on anticipated costs associated with the
final provision requiring supportive measures to be offered to
complainants and respondents in connection with forms of sex
discrimination other than sex-based harassment because such
discrimination will likely relate either to sex discrimination
allegations arising out of alleged unequal access to resources or
facilities or allegations arising out of alleged sex discrimination in
an educational setting such as different treatment on the basis of sex.
There will be few appropriate supportive measures for such
discrimination, other than eliminating the source of the sex
discrimination, which is not required under the definition of
``supportive measures'' and instead may only be provided as a remedy.
See Sec. Sec. 106.2, 106.44(g). The Department also anticipates that
these costs will either be reduced in the long term or offset by other
savings. Those savings may come from other final changes (e.g., changes
to the grievance procedure requirements) or from the anticipated
reduction in instances of sex discrimination.
The Department expects that the final regulations will 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 education program
or activity. The Department has estimated a 10 percent increase in
investigations annually. If this estimate holds, it is also reasonable
to believe that the final 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. Commenters did not provide
additional high-quality comprehensive data about the status quo, and
the specific choices that recipients will make regarding how to comply
with the final regulations; therefore, the Department cannot estimate
the effects of the final regulations with absolute precision. However,
as discussed below, we estimate the final regulations to result in a
net cost of $4,636,200.
4.A. Establishing a Baseline
4.A.1. Data Sources
As discussed in the preamble to the 2020 amendments, 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.\109\ As
part of the comment process on the 2020 amendments and in the July 2022
NPRM, the Department requested information about data sources that
would provide this information and which the Department could use to
inform its estimates. See 83 FR 61484; 87 FR 41546, 41549. The
Department did not receive such sources.
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\109\ The Department's model estimates the total costs of the
final regulations. While many of these costs would be borne by
recipients, some costs estimated herein may be borne by other
entities or individuals. Similarly, while many of the costs detailed
herein are the result of requirements of the final regulations, the
model also accounts for some non-required costs that are likely to
result from this regulatory action (i.e., costs likely to be
voluntarily borne by recipients or other entities or individuals).
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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.\110\ 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 bases 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 Developing the Model (Section 4.B), the Department adjusted these
data, using data from other sources such as data submitted under the
Clery Act, to account for these exclusions and assumed that the final
regulations may result in a 10 percent increase in the number of annual
investigations by recipients that did not previously address these
bases of sex discrimination. For LEAs, the Department continues to rely
on the 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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\110\ 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/2014-07-09SexualViolenceonCampusSurveyReportwithAppendix.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 final 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 final
regulations 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 required use of
a hostile environment standard encompasses conduct that was addressed
in enforcement practice prior to the 2020 amendments; as a result, data
regarding recipients' actions regarding sexual harassment prior to the
2020 amendments is helpful for estimating the likely effects of the
final regulations. Note that the Department is not assuming that
information relating to recipient behavior prior to the effective date
of the 2020 amendments impacts the baseline (that is, behavior and
burdens in the absence of the final regulations), but rather, several
of the changes made by the final regulations remove some of the
restrictions on recipient responses to sexual harassment imposed by the
2020 amendments. However, the Department notes that the final
regulations 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 the 2020 amendments,
in the Department's view, provides some, but not complete, insight into
what recipient behavior will be.
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
[[Page 33864]]
Subcommittee Report; as a result, the Department estimated that, prior
to the issuance of the 2020 amendments, IHEs conducted approximately
5.7 Title IX investigations of sexual harassment per year per IHE. See
85 FR 30026, 30565. The Department based this estimate on an analysis
of the 2014 Senate Subcommittee Report and data submitted by IHEs under
the Clery Act.
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 2017-2018 data from the CRDC indicates an
average of 3.23 incidents of sexual harassment per LEA per year.\111\
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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\111\ 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 Feb. 20, 2024). The
Department notes that CRDC data are now available for the 2020-2021
school year. However, because of the irregular nature of school
attendance that year due to the COVID-19 pandemic, the Department
continues to rely on data from the 2017-2018 school year, which the
Department anticipates are more typical. The CRDC data for the 2020-
2021 school year are available at https://civilrightsdata.ed.gov/data (last visited Feb. 20, 2024).
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4.A.3. Lack of Data Following the Promulgation of the 2020 Amendments
Commenters did not provide the Department with reliable statistical
data sources about actions taken by recipients following the
promulgation of the 2020 amendments. As a result, it is difficult for
the Department to conclusively estimate the number of investigations
that have occurred since the issuance of the 2020 amendments or the
number that would likely occur in later years in the absence of the
Department's final regulations. This absence of data means the
Department could not construct a baseline from which to estimate the
likely effects of the final regulations. Instead, the Department has a
reasonable framework for understanding the likely actions recipients
would take to comply with the final 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 anecdotal information received
from comments in response to the July 2022 NPRM, and feedback from the
June 2021 Title IX Public Hearing and in numerous OCR listening
sessions. These sources provide some 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 amendments.
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 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. See 85 FR 30567. 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 from comments received in response to the
July 2022 NPRM, that the actual reduction may have been higher due to
the deterrent effect of the perceived burden associated with the sexual
harassment grievance process requirements on a complainant's
willingness to report sexual harassment or participate in a process to
resolve a formal complaint of sexual harassment as required by the 2020
amendments. 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 after the 2020 amendments shifted their resolution
processes away from what would have been a proceeding under Sec.
106.45 of the 2020 amendments 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
process in response to alleged sexual harassment, or both. Again,
however, the Department has not identified, nor have commenters
provided, 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 final regulations.
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, based on stakeholder feedback, comments it received on the
July 2022 NPRM, and its enforcement experience, that many alleged
incidents that were previously classified as sexual harassment under
subregulatory guidance documents but did not meet the definition of
``sexual harassment'' under the 2020 amendments, were handled by a
recipient in other disciplinary processes.
4.B. Developing the Model
After the effective date of the 2020 amendments, 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 Sec. 106.45 under the 2020
amendments:
Group A: Recipients did not adopt a new process to handle
complaints falling outside the Sec. 106.45 grievance process in the
2020 amendments;
Group B: Recipients handled complaints falling outside the
Sec. 106.45 grievance process in the 2020 amendments through a
different grievance process; and
Group C: Recipients handled complaints falling outside the
Sec. 106.45 grievance process in the 2020 amendments through a
resolution process similar to that process.
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,
[[Page 33865]]
but instead applied an average across all recipients in each analytical
group. The Department also assumes recipients in all three groups
generally complied with the requirements of the 2020 amendments. To the
extent that a recipient did not comply with some or all of those
requirements, the following estimates may overestimate or underestimate
actual costs of the final regulations for that recipient.
To populate each of the three groups, the Department is using the
same disbursement it used in the 2020 amendments' analysis. That is,
the Department assumes that approximately 5 percent of LEAs, 5 percent
of IHEs, and 90 percent of other recipients \112\ 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 112, 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 based on the 2020 amendments. The
Department assumes that a recipient in this group, in response to the
final regulations, will 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 final 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 final
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 will see burden increases
associated with necessary revision of procedures and recordkeeping.
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\112\ 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. A
recipient in this group generally experienced some reduction in the
number of sexual harassment investigations conducted under the
grievance process 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 grievance process
requirements in the 2020 amendments 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 final regulations, Group B
will see an increase in the total number of investigations under Title
IX due to the application of Sec. 106.45 of the final regulations to
more than sexual harassment complaints. It is assumed that Group B will
benefit from some of the additional flexibilities offered under the
final regulations, such as having the option to provide the parties
with an equal opportunity to access the relevant and not otherwise
impermissible evidence or a written investigative report that
accurately summarizes the evidence under final Sec. 106.46 (subject to
the requirement to provide access to the underlying evidence upon the
request of any party). A recipient in this group will likely retain
many aspects of its current grievance procedures in response to the
final regulations. As a result, the Department estimates that the
increase in the number of investigations for Group B under the final
regulations will 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 will see burden increases associated with necessary revision of
procedures and recordkeeping under the final 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 will 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 final regulations' coverage of sex discrimination based on sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity, will 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 bases of sex discrimination, including harassment on
these bases, in OCR's prior guidance, at least some recipients may not
have fully addressed these incidents absent a more specific regulatory
requirement.\113\ The Department assumes that the inclusion of these
areas in the final regulations may result in a 10 percent increase in
the number of investigations conducted annually.\114\
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\113\ This is explained in greater detail in the discussions of
Pregnancy and Parental Status (Section III) and Title IX's Coverage
of Sex Discrimination (Section IV).
\114\ 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 Mar. 20, 2024). 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. Thirty-three percent represents 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 final 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[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 Harassment and Bullying Dear Colleague Letter, at 8, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf. It
is extremely unlikely that the final regulations will result in such
a large increase in the number of investigations occurring annually.
First, such an assumption implies 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
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 implies that no allegations of harassment and bullying on
the basis of sexual orientation are currently investigated under a
recipient's Title IX procedures, which is highly unlikely because
harassment based on sexual orientation can be difficult to
distinguish from other harassment based on sex and OCR guidance has
previously asserted that many incidents of harassment that is based
on sexual orientation or that targets LGBTQI+ students are
prohibited by Title IX. However, it is unreasonable to assume that
the express inclusion of sexual orientation and gender identity in
the final 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 final regulations would result in a 10 percent increase in
the number of investigations occurring annually.
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[[Page 33866]]
Although the Department notes that final Sec. 106.45(a)(2) will
allow a person other than a student or employee who is participating or
attempting to participate in a recipient's education program or
activity to make a complaint of sex discrimination, the Department
assumes this change will result in a minimal increase in a recipient's
overall number of complaints of sex discrimination. Specifically, the
Department assumes that complaints from non-students and non-employees
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 reasonably may constitute sex discrimination received from a non-
student or non-employee would solely depend on whether the reporting
party made a complaint that initiated the recipient's grievance
procedures. If the individual declined or was not permitted to make a
complaint under the recipient's policy (for example if the individual
was not participating or attempting to participate in the recipient's
education program or activity at the time of the alleged sex
discrimination), 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 non-student or non-employee
allegation of sex discrimination--whether by way of their Title IX
grievance procedures, alternative disciplinary process, or other
process depending on the circumstances and nature of the report. Thus,
although the final regulations may change the process under which a
non-student or non-employee allegation of sex discrimination is
addressed, the inclusion of such complaints will not meaningfully
increase the overall number of complaints processed annually across
recipients.
Unless otherwise specified, the Department's model uses median
hourly wages for personnel employed in the education sector as reported
by the Bureau of Labor Statistics \115\ and a loading factor of 2.0 to
account for the employer cost of employee compensation and indirect
costs (e.g., physical space, equipment, technology costs). In addition,
throughout this RIA, some described calculations have results that are
fractions (e.g., the described analysis generates an estimate of
4.79655 incidents at LEAs in which supportive measures are offered). To
improve readability, the Department presents these results rounded to
two decimal places in the text (e.g., 4.80), but retains the unrounded
value for purposes of its underlying calculations.
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\115\ U.S. Dep't of Labor, Bureau of Labor Statistics, May 2022
National Industry-Specific Occupational Employment and Wage
Estimates: Sector 61--Educational Services, https://www.bls.gov/oes/current/naics2_61.htm (last visited Mar. 20, 2024).
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LEAs, IHEs, and other recipients are subject to the final
regulations. Estimates regarding the number of affected LEAs and IHEs
are based on the most recent data available from the NCES \116\
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.
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\116\ U.S. Dep't of Educ., Institute of Education Sciences,
National Center for Education Statistics, http://nces.ed.gov/ccd/elsi/ (last visited Mar. 20, 2024); U.S. Dep't of Educ., Institute
of Education Sciences, National Center for Education Statistics,
IPEDS Data Center, https://nces.ed.gov/ipeds/datacenter/InstitutionByName.aspx (last visited Mar. 20, 2024).
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LEAs: It is assumed that 17,916 LEAs would be impacted by
the final regulations. Among affected LEAs, total enrollment during the
2021-2022 school year ranged from fewer than 10 students to more than
435,000 students.
IHEs: It is assumed that 6,003 IHEs would be impacted by
the final regulations. Among IHEs, recipients range from small,
private, professional schools with fewer than 5 full-time students
enrolled during the 2022 year to large, public research universities
with enrollments of more than 85,000 full-time students and
institutions operating mostly virtually with enrollments exceeding
145,000 students.
Others: It is assumed that 828 other recipients would be
impacted by the final 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 final regulations
challenging, and the Department notes that the estimates provided are
intended to reflect the average burden across all 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 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, 83 FR 61462 (Nov.
29, 2018), as well as information received by OCR through the June 2021
Title IX Public Hearing, in listening sessions, and from comments
received in response to the July 2022 NPRM. The estimates were further
informed by the input of internal subject matter experts.
4.C. Cost Estimates
Review of Regulations and Policy Revisions
The Department assumes that all recipients will need to spend time
reading and understanding the final regulations. The time necessary to
complete this task across all recipients will likely vary widely, with
some recipients opting for a close and time-consuming review of both
the regulations and preamble, while others will rely on shorter third-
party summaries targeted for specific audiences resulting in a less
burdensome and more expedient process. The Department has developed on-
average assumptions based on feedback provided by stakeholders in
listening sessions and review of comments received in response to the
July 2022 NPRM. On average, the
[[Page 33867]]
Department assumes that it will take 4 hours each for a Title IX
Coordinator ($96.46/hour) and lawyer ($146.58/hour) to complete this
task. In total, the Department estimates that reading and understanding
the final regulations will have a total one-time cost of approximately
$24,058,044 in Year 1 across all recipients.
The Department assumes that all recipients will need to revise
their grievance procedures based on the final regulations. At each
recipient institution, the Department assumes that these revisions will
take, on average, 12 hours for a Title IX Coordinator, 2 hours for an
administrator ($96.46/hour), and 6 hours for a lawyer. In total, the
Department estimates that revising grievance procedures will have a
one-time cost of $55,183,830 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
final revisions to Sec. 106.45 rather than Sec. 106.45 of the 2020
amendments, and for IHEs to also comply with final Sec. 106.46.
The final regulations 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 final
changes that may impact a recipient's grievance procedures. The
Department did not receive any data to contradict its estimates
regarding such behavior, and therefore continues to believe these
estimates are sufficient.
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 will experience more than de minimis
burden to modify their existing statements to comply with the
requirements of the notice of nondiscrimination under final 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 final regulations.
For a recipient that has not yet completed this requirement, the
Department assumes doing so will take 1 hour from the Title IX
Coordinator and 2 hours from a web developer ($67.16/hour).\117\ In
total, the Department estimates that posting nondiscrimination
statements on websites will have a one-time cost of $2,032,842 in Year
1. The Department did not receive any data to contradict its estimates
regarding the costs of posting nondiscrimination statements.
---------------------------------------------------------------------------
\117\ Note that time burden estimates for this activity are
unchanged from those used in the 2020 amendments. See 85 FR 30567.
---------------------------------------------------------------------------
Revisions to Training
The final regulations will 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, it is unlikely that the length of training
will have to change, and therefore any associated burden for these
individuals will not change based on the final regulations. The
Department assumes that Title IX Coordinators will 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 final regulations will
require all employees to be trained promptly upon hiring or change of
position that alters their duties under Title IX or this part, and
annually thereafter on the scope of conduct that constitutes sex
discrimination, including the definition of ``sex-based harassment,''
and all applicable notification requirements under final Sec. Sec.
106.40(b)(2) and 106.44, this requirement will not significantly change
the overall annual burden related to training requirements for
recipient employees. As an initial matter, based on its enforcement
experience and discussions with internal subject matter experts, the
Department assumes that all employees of recipients receive required
trainings each year and that recipients generally strive to ensure that
employee trainings are as efficient as possible to avoid detracting
employees from performing their core job responsibilities. The
Department also assumes that recipients will not budget significant
additional funds in response to the modification of the training
requirement in the 2020 amendments, and thus will not experience an
increased monetary burden that is more than de minimis due to this
final change. The Department makes this assumption based on its
understanding that recipients make purposeful decisions about the
amount of time dedicated to each required training and will make
adjustments, as needed, to ensure all required topics are covered.
While the Department understands that recipients will need to dedicate
resources to train employees, the benefits of comprehensive training
justify the costs, which the Department considers to be de minimis.
These benefits include ensuring that all employees receive training on
aspects of Title IX that are relevant and critical to their specific
roles, that those most likely to interact with students in their day-
to-day work have the training necessary to understand their role in
ensuring a recipient's Title IX compliance, and that all persons
involved in implementing a recipient's grievance procedures and the
informal resolution process are clearly designated and trained on
conducting a fair process. Each of these benefits, in turn, will help
ensure that members of a recipient's community are not discriminated
against on the basis of sex and have equal access to its education
program or activity.
Across all recipients, the Department estimates that updating
training materials for individuals other than Title IX Coordinators
will take 4 hours for the Title IX Coordinator for a total one-time
cost of $9,548,382. In subsequent years, the Department assumes that
the burden associated with the annual updating of training materials
will be about the same as it would be in the absence of the final
regulations.
In contrast, the Department anticipates that the final regulations
will require more extensive, longer training for Title IX Coordinators
compared to the 2020 amendments. As an initial matter, the Department
assumes that a recipient will employ similar means by which to train
its Title IX Coordinator in response to the final 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. The Department
has no reason to believe that a recipient will deviate from its current
source of training because of the final regulations.
[[Page 33868]]
The Department assumes that such trainings will 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 will have a cost of $4,774,191 in Year 1 and $2,387,096 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
certain 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 $9,548,382. The
Department did not receive any supplementary data upon which it could
reasonably rely to further revise its estimates regarding the costs to
recipients of revising training materials to comply with the final
regulations.
Supportive Measures
With respect to the provision of supportive measures, the
Department's final regulations require a recipient to offer supportive
measures, as appropriate, to complainants and respondents in response
to information about conduct that reasonably may constitute sex
discrimination, including sex-based harassment and prohibited
retaliation. Although the 2020 amendments only required a recipient to
offer supportive measures, as appropriate, to complainants and
respondents in response to actual knowledge of sexual harassment,
nothing in the 2020 amendments prohibited a recipient from also
offering supportive measures in response to information about other
types of sex discrimination. The Department assumes that any prohibited
retaliation that occurs will 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 will be largely indistinguishable from the types of
supportive measures offered in response to prohibited retaliation and
will not result in additional measurable cost to the recipient.
Further, it is unlikely that there will be an increase in the number of
individuals seeking and accepting supportive measures solely to address
the impacts of ``prohibited retaliation'' as defined under amended
Sec. 106.71.
The Department notes that the final regulations state that for
allegations of sex discrimination other than sex-based harassment or
prohibited retaliation, the recipient will 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 will
be little impact on anticipated costs to recipients associated with the
final provision requiring supportive measures to be offered to
complainants and respondents in response to information about conduct
that reasonably may constitute other forms of sex discrimination. The
Department's assumption is based on the belief that such information
will likely fall into one of two categories. The first category
consists of information a recipient will receive about sex
discrimination related to unequal access to resources or facilities
(e.g., reports that boys' and girls' bathrooms are not maintained at
the same level). 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 the facilities). Although it is the Department's belief that
this type of information will not 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), the second category, will be the most likely reason for a
request for supportive measures. In these instances, appropriate
supportive measures will 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, and/or
counseling the teaching assistant).
For supportive measures related to sex-based harassment, the
Department assumes that the final regulations will 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 will be de minimis; however, the
Department has added a flat cost of $250 per incident to account for
any potential costs.\118\ The Department cannot provide greater
specificity regarding specific supportive 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.
---------------------------------------------------------------------------
\118\ 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.
---------------------------------------------------------------------------
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 ($61.14/
hour), with a flat additional cost of $250 per incident. As such, the
Department assumes that, on average, the provision of supportive
measures at an LEA costs approximately $565 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 $504 per incident. Commenters did not provide any
supplementary data upon which the Department could reasonably rely to
further modify the Department's estimates. The Department anticipates
that the final regulations may increase the number of incidents for
which supportive measures are provided per year.
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
[[Page 33869]]
final regulations, the number of incidents prompting an offer and
provision of supportive measures will be approximately 100 percent
higher than the number of investigations conducted under the 2020
amendments. 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 will be an average annual
increase to 6.4 incidents prompting an offer and provision of
supportive measures under the final 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 5.81
times per year. At IHEs, the Department assumes 10.26 provisions of
supportive measures per year and at other recipients, 3.60 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 $91,424,553 per year.
The Department's estimates also reflect an anticipated change in
the behavior of complainants across all recipient types due to the
final regulations. Specifically, the Department has received anecdotal
reports of complainants accepting supportive measures while declining
to participate in a recipient's grievance process due to the perceived
burden associated with initiating that process. The Department
estimates that under the 2020 amendments the number of individuals
accepting supportive measures exceeded the number of individuals
choosing to pursue resolution through the recipient's grievance
process. Under the final 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 final Sec. 106.45, and if applicable Sec.
106.46, will increase. 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 Final
Regulations (Section 3). In response to the final regulations, the
Department assumes, as described in the discussion of Developing the
Model (Section 4.B), that all recipients will see an 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 final regulations will increase the number of incidents that
may initiate an offer of supportive measures, but rather, this increase
likely will be driven by greater clarity regarding the scope of
coverage created by the final regulations and enhanced training
requirements which will inform individuals who are already eligible for
such measures of the availability of these measures. The Department
assumes that under the final regulations, each LEA will provide
supportive measures 6.40 times per year, each IHE will do so 11.29
times per year, and other recipients will do so 3.96 times each per
year. In all, the Department estimates that after the enactment of the
final regulations, the provision of supportive measures will cost a
total of $100,567,008, for a net increase of $9,142,455 per year.
Investigations and Adjudications
Under the 2020 amendments, the geographic location of an alleged
incident affects whether the allegations will be covered under Title
IX. As a result, the Department recognizes that recipients spend time
investigating whether incidents took place in a location that requires
the use of the Title IX grievance process to investigate and adjudicate
allegations of sexual harassment. Final Sec. 106.11 clarifies that
Title IX applies to every recipient and all prohibited sex
discrimination occurring under a recipient's education program or
activity. This includes the obligation to address a sex-based hostile
environment under a recipient's education program or activity in the
United States, even when some conduct alleged to be contributing to the
hostile environment occurred outside the recipient's education program
or activity or outside the United States. The Department emphasizes
that recipients do not have an obligation under Title IX to receive and
process complaints or commence grievance procedures about or otherwise
address conduct occurring outside of the United States, unless the
conduct is alleged to have contributed to a sex-based hostile
environment under the recipient's education program or activity in the
United States. In some instances, such as when an alleged incident
occurred outside of the United States and may have contributed to a
sex-based hostile environment under the recipient's education program
or activity domestically, the Department acknowledges that the
resulting investigation may be more time consuming. Although a
recipient may decide to investigate other conduct that occurred outside
the United States under its existing code of conduct or other policies
pertaining to, for example, study abroad programs, the costs associated
with such an investigation are not required by the final regulations.
Commenters did not provide high-quality data on these issues in
response to a request in the July 2022 NPRM, 87 FR 41546, 41549;
therefore, the Department does not have a basis upon which to develop
estimates of this change.
As noted in the discussion of Developing the Model (Section 4.B),
it is the Department's view that recipients will fall into three groups
for purposes of categorizing their likely responses to the final
regulations. A recipient in Group A will likely experience an increase
in the number of Title IX investigations conducted under the final
regulations, but it will also likely exercise flexibilities built into
the final regulations which will reduce the burden per complaint. It is
important to note that the Department assumes that the exercise of
these flexibilities will not impact a recipient's ability to ensure
fair investigations and adjudications but rather will 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 fair and equitable proceedings for the
parties. A recipient in Group B also will likely experience an increase
in the number of investigations conducted annually. However, a
recipient in Group B will 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 final
regulations but excluded from the scope of the 2020 amendments, by way
of an alternative disciplinary process. Likewise, a recipient in Group
C, having complied with the 2020 amendments and having continued to
respond to sex discrimination as it had prior to those amendments, will
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 will take for a
recipient to investigate a complaint of sex discrimination, including
sex-based harassment, based on discussions with organizations that work
directly with Title IX Coordinators
[[Page 33870]]
at LEAs and IHEs and with internal subject matter experts. For LEAs in
Group A, the Department estimates that an investigation currently
takes, on average, 3 hours from a Title IX Coordinator, 4 hours from an
administrative assistant, 2 hours each from two lawyers/advisors
($146.58/hour) when they are involved, 6 hours from an investigator
($52.10/hour), and 2 hours from an adjudicator ($63.84/hour). Note that
the Department assumes that lawyers/advisors will 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, 4 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
for recording live hearings. 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
$6,746,684.
Under the final regulations, the Department estimates that
recipients in Group A will develop revised procedures to ensure fair
investigations tailored to their educational settings, which will
reduce the burden associated with each investigation and adjudication.
Removing LEAs from some of the obligations under Sec. 106.45 of the
2020 amendments will mean Group A recipients will no longer be required
to supplement the work of their own administrators with specialized
individuals when investigating and making a determination on a
complaint of sex-based harassment. The Department assumes
investigations will require 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. At the IHE
level, the Department assumes each investigation and adjudication will
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.
The 2020 amendments require IHEs to create an ``audio or
audiovisual recording, or transcript'' of all live hearings. As LEAs
and other recipients that are not IHEs are not required to hold
hearings under the 2020 amendments, the Department assumes that few, if
any, have chosen to do so. However, IHEs are required to hold hearings
under the 2020 amendments. Now, the final regulations provide that IHEs
may, but are not required to, hold live hearings. When a live hearing
is conducted, an IHE must make an audio or audiovisual recording or
transcript of the live hearing and make it available to the parties for
inspection and review. In addition, Sec. 106.46(f)(1)(i)(C) of the
final regulations requires a postsecondary institution to create a
recording or transcript of individual meetings with a party or witness
conducted by the postsecondary institution to satisfy its obligations
under Sec. 106.46(f)(1)(i)(A), even if a recipient does not elect to
hold a live hearing. The Department has accounted for this cost.
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 final
regulations, the Department assumes that LEAs in Group A will conduct,
on average, 3.55 investigations per year; IHEs in Group A will conduct
an average of 6.27 investigations per year, and other recipients will
conduct, on average, 2.20 investigations per year. The Department
therefore estimates that, under the final regulations, investigations
and adjudications among recipients in Group A will cost approximately
$9,747,693 per year, which represents a net burden increase of
$3,001,009 per year. The Department did not receive any data to
contradict its estimates regarding the costs of investigations and
adjudications.
---------------------------------------------------------------------------
\119\ 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 \119\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost category Baseline After final regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sex Discrimination Grievance
Procedures 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 under
the 2020 amendments requires 3 hours of time from a Title IX
Coordinator, 14 hours from an administrative assistant, 8 hours each
from two lawyers/advisors
[[Page 33871]]
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 an investigation under the 2020 amendments requires 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 an investigation under the 2020 amendments
requires 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 costs
a flat rate of $100 per hearing under the 2020 amendments. 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 under the 2020 amendments LEAs in Group B
conduct, on average, 1.94 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 under the 2020 amendments investigations and
adjudications for a recipient in Group B cost approximately
$176,459,489 per year.
As noted in the discussion of Lack of Data Following the
Promulgation of the 2020 Amendments (Section 4.A.3) and the July 2022
NPRM, 87 FR 41549, the Department assumes that a recipient in Group B
shifted approximately 90 percent of those incidents that involved
complaints falling outside the Sec. 106.45 grievance process 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 determined, based on stakeholder
feedback, comments it received on the July 2022 NPRM, and its
enforcement experience, that many recipients developed alternative
processes by which to address conduct that fell outside of the
parameters of the 2020 amendments. As noted in that section, Group B
and Group C recipients created alternative processes that either
reflected the recipient's student or employee conduct processes (Group
B recipients) or mirrored the Sec. 106.45 grievance process under the
2020 amendments (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 grievance process under the 2020 amendments for
Group C recipients.
At the LEA level, the Department assumes that an alternative
disciplinary process requires 3 hours from an administrator ($96.46/
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. At other recipients, the Department assumes that the alternative
disciplinary process requires 4 hours from an administrator and 8 hours
from an administrative assistant. The Department estimates that LEAs in
Group B, on average, shifted 1.16 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
under the 2020 amendments a recipient spends approximately $59,998,354
per year on implementing alternative disciplinary processes for
incidents that were previously covered under their grievance procedures
prior to the 2020 amendments.
Under the final regulations, the Department assumes that all the
incidents previously covered under a recipient's grievance procedures
prior to the 2020 amendments will be handled under the recipient's
Title IX grievance procedures. At LEAs in Group B, the revised
procedures will 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 will use an investigator and adjudicator other than the Title IX
Coordinator or other administrator. In such instances, the Department
assumes that those LEAs will need 2 hours from an investigator and 1
hour from an adjudicator. The Department assumes that, in 5 percent of
instances, each party will have a lawyer/advisor each spending 4 hours
on the incident. These LEA level estimates represent an assumption that
most LEAs will return to their processes from prior to the 2020
amendments due to the removal of LEAs from some of the specific
obligations under Sec. 106.45 of the 2020 amendments. At the IHE level
in Group B, the revised procedures will 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
will 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 final regulations, Group B LEAs will conduct, on average,
3.55 investigations per year, while IHEs will conduct 6.27
investigations per year, and other recipients will conduct 2.20
investigations per year. Therefore, under the final regulations,
investigations and adjudications at a recipient in Group B will cost a
total of approximately $172,807,000 per year which represents a net
decrease in the burden associated with investigations and hearings by
$63,650,843 per year. The Department did not receive any data to
contradict its estimates regarding the costs of investigations per
year.
[[Page 33872]]
Table II--Investigations and Adjudications Burden Estimates--Group B Recipients
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost category Baseline After final regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sex Discrimination 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 hour \4\........ 8 hours........... 1 hour.
Recording....................... $100.............. $200.............. $100.............. .................. $200.............. $100.
# of Investigations............. 1.94.............. 3.82.............. 1.00.............. 3.55.............. 6.27.............. 2.20.
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Alternative 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..........
Investigator.................... 6 hours........... 15 hours..........
Adjudicator..................... 2 hours........... 8 hours...........
Recording....................... $100.............. $200.............. $100..............
# of Investigations............. 1.16.............. 1.70.............. 0.90..............
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\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 will be used in approximately 25
percent of investigations and adjudications.
\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 final regulations will
change the nature of the appeal process for fully adjudicated
complaints. The Department notes that the final regulations 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' obligations under the 2020 amendments as it will apply to
any dismissal of a sex discrimination complaint, not just to complaints
of sex-based harassment. The final regulations no longer require LEAs
and other recipients to offer the parties an appeal process for a
determination in a sex-based harassment complaint; however, IHEs must
continue to offer an appeal process for sex-based harassment complaints
involving a student party. In addition, the final regulations require
all recipients to offer the parties in a sex discrimination complaint
an appeal process that, at a minimum, is the same as it offers in all
other comparable proceedings, if any, including proceedings relating to
other discrimination complaints. 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 final regulations in this area. Assuming that there is a
de minimis change regarding the number of recipients that offer an
appeal because all recipients will need to offer an appeal from a
dismissal of a complaint of sex discrimination, there may be additional
costs to a recipient associated with appeals because of the estimated
increase in the number of complaints brought under the final
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. 85 FR 30568. The Department assumes that at
the LEA level, the appeal process will 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, will
handle an additional 1.33 appeals per year as a result of the final
regulations, IHEs, on average, will handle an additional 2.35 appeals
per year, and other recipients, on average, will handle an additional
0.95 per year, the Department estimates that the increase in appeals
stemming from the increase in complaints likely to be made under the
final regulations will result in an additional cost of approximately
$17,776,304 per year.
The Department expects that the final regulations will have a de
minimis change on the proportion of complaints resolved through
informal resolution and will not affect the general burden associated
with each such resolution. Specifically, although the requirements for
grievance procedures will be less burdensome under the final
regulations than under the 2020 amendments, the Department expects that
most complainants who have elected to proceed with informal resolution
under the 2020 amendments will continue to do so under the final
regulations because of the elimination of the formal complaint
requirement prior to initiating the informal resolution process.
Although it is possible that a complainant will decide to make a
complaint and pursue an investigation because of the reduced burden
under the final regulations, it is the Department's view that there is
no basis to assume that a complainant who would have pursued informal
resolution under the 2020 amendments is more or less likely to choose
informal resolution under the final regulations because
[[Page 33873]]
individuals' rationales for choosing an informal resolution process
vary widely.
Based on anecdotal reports from commenters, 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 will 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
an investigation and adjudication; at the IHE level, the additional
burden will 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 will 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 will 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. Based on the
increase in complaints that the Department anticipates under the final
regulations, the estimated increase in the cost of informal resolutions
will be approximately $14,068,164 per year. The Department did not
receive any supplementary data upon which it could reasonably rely to
further modify its cost estimates.
Recordkeeping
The Department assumes that all recipients will need to modify
their existing recordkeeping systems to comply with the final
regulations. Specifically, the Department submits that final Sec.
106.8(f) broadens the existing scope of the recordkeeping requirements
under Sec. 106.45(b)(10) of the 2020 amendments because the final
recordkeeping requirement applies to all notifications to the Title IX
Coordinator about conduct that reasonably may constitute sex
discrimination and all 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 and established recordkeeping systems in response to
the 2020 amendments. In these instances, final Sec. 106.8(f) will not
impose any additional burden on those recipients as their existing
recordkeeping activity will likely address all pertinent requirements
under the final regulations.
Alternatively, for recipients that only maintain records related to
sexual harassment as required by Sec. 106.45(b)(10) of the 2020
amendments and do not preserve information related to other forms of
sex discrimination, the changes will 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 is required by final
Sec. 106.8(f). The Department estimates that the final regulations, in
general, will increase the recordkeeping burden for these recipients.
At the LEA level, the Department estimates that necessary modifications
to current practice will 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 will require 4 hours from a Title IX
Coordinator, 8 hours from an administrative assistant, and 4 hours from
a database administrator ($77.54/hour). At other recipients, the
Department estimates that modifications will require 2 hours each from
a Title IX Coordinator and an administrative assistant. In total, the
Department estimates that modifications to recipients' recordkeeping
systems will cost approximately $13,022,034 in Year 1.
In future years, the Department assumes the final regulations will
necessitate an ongoing increase, above the baseline year, in
recordkeeping costs. Specifically, at the LEA level, the Department
estimates that recordkeeping will 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 $5,237,728 per year. The Department did not
receive any supplementary data upon which it could reasonably rely to
further modify its estimates regarding such costs.
Monitoring the Recipient's Education Program or Activity for Barriers
To Reporting Information About Conduct That Reasonably May Constitute
Sex Discrimination
The Department's final regulations require a recipient to ensure
that its Title IX Coordinator monitors the recipient's education
program or activity for barriers to reporting conduct that reasonably
may constitute sex discrimination and that the recipient take steps
reasonably calculated to address such barriers. Although a recipient
was neither required to nor prohibited from monitoring its environment
for these barriers under the 2020 amendments, 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, 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 will need to take to remove these barriers, should they be
identified, will 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 final requirement with potentially varying
costs and benefits. The Department did not receive any supplementary
data upon which it could reasonably rely to modify its estimates
regarding such costs and benefits.
[[Page 33874]]
4.D. Changes in the Final 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 final changes that the Department does not anticipate will
generate costs for regulated entities above and beyond general costs
described previously. Below the Department discusses some of these
final changes to clarify the basis for that assumption.
Lactation Space for Students and Employees
Although the Title IX regulations since 1975 specifically
prohibited discrimination against students and employees based on
pregnancy, childbirth, termination of pregnancy, and recovery, the
final regulations at Sec. Sec. 106.2 (defining ``pregnancy or related
conditions''), 106.21(c)(2)(ii), 106.40(b)(1), and 106.57(b) clarify
that a recipient may not discriminate based on pregnancy or related
conditions, including lactation. See 40 FR 24128 (codified at 45 CFR
86.21(c)(2), 86.40(b)(2), 86.57(b) (1975)); 34 CFR 106.21(c),
106.40(b)(1), 106.57(b) (current). The final regulations also require a
recipient to ensure access to a lactation space for students and
employees, as well as reasonable modifications for students and break
time for employees to enable them to use of the space as needed.
Specifically, final Sec. 106.40(b)(3)(v) requires a recipient to
``[e]nsure that the student can access 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, final Sec.
106.57(e) requires a recipient to provide ``reasonable break time for
an employee to express breast milk or breastfeed as needed'' and to
``ensure that an employee can access 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 can 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 final revision. Although it is possible that the final
regulations' clarification that a lactation space must be available for
both students and employees may result in an increase in demand for
such a space, it is the Department's view that any such increase will
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 FLSA.\120\ 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 and duration of
breaks needed to express milk will likely vary.'' U.S. Dep't of Labor,
Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at
Work (Jan. 2023), 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 virtually all full-time and
part-time workers in public and private education programs or
activities. 29 U.S.C. 203(e). Although at the time of the July 2022
NPRM the FLSA exempted certain employees, such as professors, teachers,
and certain academic administrative personnel from coverage, Congress
has since amended the statute to cover these employees. 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 will be able to locate such a space within
their current property or maximize the use of an existing space. The
Department's final 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
final regulations will be negligible.
---------------------------------------------------------------------------
\120\ 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 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
[[Page 33875]]
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 final regulations will 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 final regulations will impose de
minimis cost on a recipient that is already providing lactation space
and breaks to its staff.
The Department acknowledges that in some cases, the final
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 will 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 will meet the Department's
final requirements for the reasons already discussed. In addition,
because a lactation space is only in use by any given person for a
limited time period, 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 will be able to comply with the final regulations using
existing space at minimal cost. For example, the final regulations do
not require that a lactation space be of a particular size, shape, or
include features other than being private and clean. Similarly, the
Department anticipates that a recipient that currently provides
lactation space will 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 final 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 will have access to a private
office that is sufficient for lactation needs.
Finally, the Department anticipates that its final regulations
regarding lactation time and space will 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, this provision will impose de
minimis costs and will provide important benefits in terms of
eliminating sex-based barriers to education and employment. The
Department did not receive any supplementary data upon which it could
reasonably rely to modify its estimates.
Reasonable Modifications for Students Because of Pregnancy or Related
Conditions
The Department does not anticipate significant cost to a recipient
based on final Sec. 106.40(b)(3)(ii), which requires that a recipient
make reasonable modifications because of a student's ``pregnancy or
related conditions'' as defined by final Sec. 106.2, because this
requirement is similar to OCR's previous discussion of a recipient's
obligations in this context. 2013 Pregnancy Pamphlet, at 9. The Title
IX regulations since 1975 have also prohibited 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.'' See 40 FR 24128 (codified at 45
CFR 86.40(b)(1) (1975)); 34 CFR 106.40(b)(1) (current). Likewise, Sec.
106.40(b)(4) since 1975 has 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.'' See 40 FR 24128 (codified at 45 CFR 86.40(b)(4) (1975)); 34
CFR 106.40(b)(4) (current).
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 amended
reasonable modifications standard under Sec. 106.40(b)(3)(ii) will be
more costly than under the prior OCR interpretation of a recipient's
duties. The Department did not receive any supplementary data upon
which it
[[Page 33876]]
could reasonably rely to modify its estimates regarding such costs.
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 Final Regulations (Section 4) to comply with final Sec.
106.31(a)(2). Final Sec. 106.31(a)(2) clarifies that in the limited
circumstances in which different treatment or separation on the basis
of sex is permitted, 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, except as
permitted by 20 U.S.C. 1681(a)(1) through (9) and the corresponding
regulations at Sec. Sec. 106.12-106.15, 20 U.S.C. 1686 and its
corresponding regulation Sec. 106.32(b)(1), or Sec. 106.41(b). Final
Sec. 106.31(a)(2) also clarifies 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 on the basis of sex. As described in the
discussion of Coverage of Sex Discrimination (Section IV), the final
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 some 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 a recipient's education program or activity consistent with their
gender identity. Compliance with final Sec. 106.31(a)(2) may require
updating of policies or training materials, but will 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 final
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 will be required to review and update those
policies and practices under the final regulations; however, the
Department anticipates that the costs of these modifications will be
subsumed into the general costs of updating policies and procedures to
comply with the final regulations, which is reflected in the costs
described in the discussion of the Nondiscrimination Policy and
Grievance Procedures (Sec. 106.8) section of the RIA.
The Department notes that some other costs associated with final
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 final Sec.
106.31(a)(2) will 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 will
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. Litigation costs related to commenters' concerns
about specific provisions in the final regulations, including the
definition of ``sex-based harassment'' (Sec. 106.2), supportive
measures (Sec. 106.44(g)), pregnancy or related conditions (Sec. Sec.
106.40 and 106.57(e)), and the scope of sex discrimination (Sec.
106.10), are discussed above.
5. Regulatory Alternatives Considered
The Department reviewed and assessed various alternatives prior to
issuing the final regulations, drawing from internal sources, as well
as feedback OCR received from stakeholders, including during the June
2021 Title IX Public Hearing and numerous listening sessions, and from
comments received in response to the July 2022 NPRM. In particular, the
Department considered the following alternative actions: (1) leaving
the 2020 amendments without amendment; (2) rescinding the 2020
amendments in their entirety and reissuing past guidance, including the
2001 Revised Sexual Harassment Guidance, the 2011 Dear Colleague Letter
on Sexual Violence, and the 2014 Q&A on Sexual Violence; (3) rescinding
the 2020 amendments, either in whole or in part, and issuing new
guidance; (4) proposing narrower amendments to the 2020 amendments; or
(5) issuing completely new final amendments to address significant
areas (e.g., clarifying that coverage includes gender identity,
applying regulatory grievance procedure requirements to all sex
discrimination complaints, and adding regulatory provisions regarding a
recipient's obligation to students and employees who are pregnant or
experiencing pregnancy-related conditions).
The Department determined that a combination of (4) and (5), which
involves issuing final amendments, is the better alternative. The
combination of these alternatives means amending the 2020 amendments to
make noteworthy adjustments that will better achieve the objectives of
the statute, are consistent with recent case law, and account for the
feedback OCR received from stakeholders, including during the June 2021
Title IX Public Hearing and numerous listening sessions, and the
comments received in response to the July 2022 NPRM. Based on its
internal review, the Department's view is that the 2020 amendments did
not fully address all prohibited 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 and commenters shared their concerns with the
Department, specifically that certain requirements in the 2020
amendments 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
[[Page 33877]]
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 2020
amendments may have created a risk that Title IX's prohibition on sex
discrimination would be underenforced. In addition, it is the
Department's view that greater clarity is required than what is in the
2020 amendments 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 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 and comments in response to the July 2022 NPRM, 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 sex
discrimination; guidance documents, which are not legally binding on a
recipient, will not serve that function.
After careful consideration of these alternatives, the Department
determines that adopting alternatives (4) and (5) is the best approach
for five reasons. Such an approach: (a) best fulfills Title IX's
guarantee of nondiscrimination on the basis of sex by a recipient of
Federal funds in its education program or activity; (b) ensures 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) safeguards fairness for all who participate in a
recipient's grievance procedures for sex discrimination, including sex-
based harassment; (d) protects 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) ensures 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 and comments in
response to the July 2022 NPRM, the Department considered alternatives
to the final 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 final regulations,
the Department considered whether to clarify and define the scope of
Title IX. Specifically, although the 2020 amendments define ``sexual
harassment,'' they did not clarify the scope of Title IX's prohibition
on sex discrimination. The Department considered several options to
address this area and chooses to specify in the final 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 had not previously addressed discrimination on the bases
explicitly referenced in the regulations, the non-monetary benefits of
providing clarity and recognizing the broad scope of Title IX's
protections justify 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 2020 amendments' 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 comments received in
response to the July 2022 NPRM requested that the Department explicitly
include additional instances of off-campus conduct within the scope of
its final 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 all sex discrimination that occurs under
a recipient's education program or activity, including conduct subject
to a recipient's disciplinary authority, and also in addressing a sex-
based hostile environment under the recipient's education program or
activity even when some conduct alleged to be contributing to the
hostile environment occurs outside of a recipient's education program
or activity. 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 2020 amendments.
Moreover, the conduct excluded from the 2020 amendments 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 final regulations
justifies any associated costs.
Distinguishing Between Educational Levels
The Department also considered whether to distinguish between
educational levels in the final regulations. Specifically, during the
June 2021 Title IX Public Hearing, in listening sessions, and in
comments received in response to the July 2022 NPRM, stakeholders
associated with LEAs expressed concerns that certain requirements in
the 2020 amendments 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, fair 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 Final Regulations (Section 3) and Costs
of the Final Regulations (Section 4), the Department is unable to
quantify the benefits or costs of enabling recipients to adapt fair
grievance procedures to their educational environment; however, as
discussed throughout the preamble, not doing so will result in
continuing impediments to full implementation of Title IX's
nondiscrimination guarantee. Alternatively, the final regulations
create the benefit of enabling all recipients to respond promptly and
effectively to sex discrimination in their program or activity, remedy
that
[[Page 33878]]
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,\121\ the following table is the
Department's accounting statement showing the classification of the
expenditures associated with the provisions of the final regulations.
The regulations are expected to result in estimated costs of
$98,505,145 in the first year following publication of the final
regulations, and $12,038,087 in cost savings in subsequent years. This
table provides the Department's best estimate of the changes in
annualized monetized costs, benefits, and transfers as a result of the
final regulations.
---------------------------------------------------------------------------
\121\ As explained above, Executive Order 12866 has been amended
and supplemented by Executive Order 14094 of April 6, 2023, which
directs the Director of the Office of Management and Budget to issue
within one year of April 6, 2023, revisions to OMB Circular A-4.
Updated OMB Circular A-4 does not apply to the final regulations.
------------------------------------------------------------------------
------------------------------------------------------------------------
Category Benefits
(calculated on an annual basis)
------------------------------------------------------------------------
Address gaps in coverage in 2020
amendments......................... Not quantified.
Clarify scope of Title IX's
protection......................... Not quantified.
Clarify responsibilities toward
students and employees based on
pregnancy or related conditions.... Not quantified.
------------------------------------------------------------------------
Costs
(calculated on an annual basis)
------------------------------------------------------------------------
Discount rate....................... 3% 7%
Reading and Understanding the $2,738,191 $3,201,238
Regulations........................
Policy Revisions.................... 6,280,804 7,342,931
Publishing Notice of 231,370 270,496
Nondiscrimination..................
Training of Title IX Coordinators... 2,658,785 2,704,730
Updating Training Materials......... 2,173,518 2,541,074
Supportive Measures................. 9,142,455 9,142,455
Group A Investigations.............. 3,001,009 3,001,009
Group B Investigations.............. (63,650,843) (63,650,843)
Appeal Process...................... 17,776,304 17,776,304
Informal Resolutions................ 14,068,164 14,068,164
Creation and Maintenance of 6,262,994 6,591,433
Documentation......................
-----------------------------------
Total........................... 543,504 2,671,136
------------------------------------------------------------------------
C. 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 final regulations on small
entities. The SBA Size Standards for proprietary IHEs are set out in 13
CFR 121.201. Nonprofit IHEs are defined as small entities if they are
independently owned and operated and not dominant in their field of
operation. See 5 U.S.C. 601(4). ``Public institutions and LEAs'' are
defined as small organizations if they are operated by a government
overseeing a population below 50,000. See 5 U.S.C. 601(5).
2. Final 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, will be sufficiently low to justify
certification under the RFA. If an agency is unable to make such a
certification, it must prepare a Final Regulatory Flexibility Analysis
(FRFA) as described in the RFA. Based on the data available, the
Department has completed a FRFA.
The purpose of this analysis is to identify the number of small
entities affected, assess the economic impact of the final 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 final regulations in the
discussion of the FRFA, Estimated Number of Small Entities (Section
2.B), assesses the potential economic impact of the final regulations
on those small entities in the discussion of the FRFA, Estimate of the
Projected Burden of the Final Regulations on Small Entities (Section
2.C), and examines and considers less burdensome alternatives to the
final regulations for small entities in the FRFA, Discussion of
Significant Alternatives (Section 2.D).
2.A. Reasons for Regulating
The Department's review of the 2020 amendments and of feedback
received during and pursuant to the June 2021 Title IX Public Hearing,
as well as stakeholder listening sessions and from comments received in
response to the July 2022 NPRM, suggests that the 2020 amendments 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 will better equip recipients to
create and maintain educational 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 final regulations is to fully
effectuate Title IX by clarifying and specifying the scope and
application of Title IX's protections and recipients' obligation not to
discriminate based on sex. Specifically, the final regulations focus on
ensuring that recipients prevent and address sex discrimination,
including but not limited to sex-based harassment, in their education
programs and activities;
[[Page 33879]]
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 2020 amendments, the Department's final
regulations also set out requirements that enable recipients to meet
their obligations in settings that vary in size, student populations,
and administrative structure. The final regulations will 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 noted above, SBA defines small proprietary IHEs based on
revenue. These regulations apply, however, to all postsecondary IHEs,
which cannot be compared across IHEs and sectors using the SBA revenue
size standard because non-profit and public sector IHEs are not
measured based on revenue. As a result, for purposes of the final
regulations, the Department defines ``small entities'' by reference to
enrollment, as it has done in other rulemakings, to allow meaningful
comparison of regulatory impact across all types of IHEs in the for-
profit, non-profit, and public sectors.\122\ The Department notes that
enrollment and revenue are generally correlated for all IHEs and that
IHEs with higher enrollment tend to have the resources and
infrastructure in place to more easily comply with the Department's
regulations in general and the final regulations in particular. Since
enrollment data is more readily available to the Department for all
IHEs, the Department has used enrollment as the basis to identify small
IHEs in prior rulemakings and continues to use enrollment to identify
small IHEs in the final regulations. This approach also allows the
Department to use the same metric to identify small IHEs across the
for-profit, non-profit, and public sectors. It also treats public IHEs
operated at the behest of jurisdictions with a population of more than
50,000 but with low enrollment as small, which the SBA's standard would
not treat as small. Lastly, the North American Industry Classification
System (NAICS), under which SBA's revenue standards in 13 CFR 121.201
are generally established, set different revenue thresholds for IHEs
that provide different areas of instruction (e.g., cosmetology,
computer training, and similar programs) and there is no existing data
that aligns those different revenue standards to the different types of
regulated institutions. Similarly, where an IHE provides instruction in
several of these areas, it is unclear which revenue threshold to apply
for purposes of the Department's RFA analysis. The Department received
several comments regarding its alternative size standard, which are
addressed in the discussion of Comments on the Department's Model and
Baseline Assumptions, Regulatory Flexibility Act (Small Business
Impacts).
---------------------------------------------------------------------------
\122\ See the proposed 2020 amendments for more background on
the Department's justification for using an enrollment-based size
standard. 83 FR 61462 (Nov. 29, 2018). See, also, e.g., ``Student
Assistance General Provisions, Federal Perkins Loan Program, Federal
Family Education Loan Program, and William D. Ford Federal Direct
Loan Program'' proposed rule, published in the Federal Register on
July 31, 2018, 83 FR 37242, and final rule, published in the Federal
Register on September 23, 2019, 84 FR 49788; and ``Gainful
Employment'' (GE) final rule published in the Federal Register on
July 1, 2019, 84 FR 31392. The Department notes that the alternative
size standards that are used in the final regulations are identical
to the alternative size standards used in the GE regulations
published in the Federal Register on October 10, 2023. See 88 FR
70175.
---------------------------------------------------------------------------
As explained above, the enrollment-based size standard remains the
most relevant standard for identifying all IHEs subject to the final
regulations. Therefore, instead of the SBA's revenue-based size
standard, which applies only to proprietary IHEs, the Department has
defined ``small IHE'' as (1) a less-than-two-year IHE with an
enrollment of fewer than 750 students, or (2) an at-least-two-year-but-
less-than-four-year IHE, or a four-year institution, with enrollment of
fewer than 1,000 students.\123\ As a result of discussions with the
SBA, this is an update from the standard used in some prior rules, such
as the July 2022 NPRM associated with the final regulations,
``Financial Value Transparency and Gainful Employment (GE), Financial
Responsibility, Administrative Capability, Certification Procedures,
Ability to Benefit (ATB),'' published in the Federal Register on May
19, 2023, 88 FR 32300, ``Improving Income Driven Repayment for the
William D. Ford Federal Direct Loan Program and the Federal Family
Education Loan (FFEL) Program, published in the Federal Register on
July 10, 2023, 88 FR 43820, and the final regulations, ``Pell Grants
for Prison Education Programs; Determining the Amount of Federal
Education Assistance Funds Received by Institutions of Higher Education
(90/10); Change in Ownership and Change in Control,'' published in the
Federal Register on October 28, 2022. 87 FR 65426. Those prior
regulations applied an enrollment standard for a small two-year IHE of
less than 500 full-time-equivalent (FTE) students and for a small 4-
year IHE, less than 1,000 FTE students.\124\ The Department consulted
with the SBA Office of Advocacy on the revised alternative standard for
this rulemaking. The Department continues to believe this approach most
accurately reflects a common basis for determining size categories that
is linked to the provision of educational services and that it captures
a similar universe of small entities as the SBA's revenue standard. We
note that the Department's revised alternative size standard and the
SBA's revenue standard identify a similar number of total proprietary
IHEs, with greater than 93 percent agreement between the two standards.
Using the Department's revised alternative size standard, approximately
61 percent of all IHEs would be classified as small for these purposes.
Based on data from NCES, in 2022, small IHEs had an average enrollment
of
[[Page 33880]]
approximately 289 students. In contrast, all other IHEs had an average
enrollment of approximately 5,509 students.
---------------------------------------------------------------------------
\123\ In regulations prior to 2016, the Department categorized
small businesses based on tax status. Those regulations defined
``nonprofit organizations'' as ``small organizations'' if they were
independently owned and operated and not dominant in their field of
operation, or as ``small entities'' if they were institutions
controlled by governmental entities with populations below 50,000.
Those definitions resulted in the categorization of all private
nonprofit organizations as small and no public institutions as
small. Under the previous definition, proprietary institutions were
considered small if they are independently owned and operated and
not dominant in their field of operation with total annual revenue
below $7,000,000. Using FY 2017 IPEDs finance data for proprietary
institutions, 50 percent of 4-year and 90 percent of 2-year or less
proprietary institutions would be considered small. By contrast, an
enrollment-based definition applies the same metric to all types of
institutions, allowing consistent comparison across all types.
\124\ In those prior rules, at least two but less-than-four-
years institutions were considered in the broader two-year category.
In this iteration, after consulting with the SBA Office of Advocacy,
we separate this group into its own category. Based on this
consultation, we have also increased the enrollment threshold for
less-than-two-year institutions from 500 to 750 in order to treat a
similar number of institutions as small under the alternative
enrollment standard as would be captured under a revenue standard.
Table 1--Number of Small IHEs Under Enrollment Based Definition
----------------------------------------------------------------------------------------------------------------
Less than 2-
4-year 2-year year Total
----------------------------------------------------------------------------------------------------------------
Not Small....................................... 1,612 667 89 2,368
Small........................................... 1,155 908 1,572 3,635
---------------------------------------------------------------
Total....................................... 2,767 1,575 1,661 6,003
----------------------------------------------------------------------------------------------------------------
Source: 2022 IPEDS data reported to the Department.
In addition, the Department defines ``small LEA'' as either an LEA
that is (1) a traditional public school district located in a county
with a total population of less than 50,000, or (2) a charter school
LEA. With regard to charter school LEAs, given their average size and
their inherent geographic limitations, which limit their ability to be
``dominant'' in the field, it is reasonable to treat all charter school
LEAs as small LEAs for purposes of this analysis. Under this analysis,
8,914 of all LEAs would be considered ``small.''
----------------------------------------------------------------------------------------------------------------
Small LEAs Not small LEAs
Entity type ------------------------------------------------------------------------
Avg. revenue Avg. enrollment Avg. revenue Avg. enrollment
----------------------------------------------------------------------------------------------------------------
Traditional LEA........................ $17,903,420 1,223 $84,430,327 5,032
Charter LEA............................ 8,750,165 730
----------------------------------------------------------------------------------------------------------------
2.C. Estimate of the Projected Burden of the Final Regulations on Small
Entities
As discussed throughout the RIA, Group A IHEs are those most likely
to see a net cost increase from the final regulations. As such, a Group
A IHE will incur greater costs than an IHE in Group B or Group C. Based
on the model described in the discussion of RIA, Developing the Model
(Section 4.B), an IHE in Group A will see a net increase in costs of
approximately $8,477 per year. For purposes of assessing the impacts on
small entities, the Department defines a ``small IHE'' as a less than
two-year IHE with an enrollment of less than 750 FTE and two-year or
four-year IHEs with an enrollment of less than 1,000 FTE, based on
official 2022 FTE enrollment. The Department notes that this estimate
assumes that each small IHE will conduct the same number of
investigations per year, on average, as the total universe of all
affected IHEs. 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 IPEDS, in FY 2022, small IHEs had, on average, total revenues of
approximately $8,282,318.\125\ Therefore, the Department estimates that
the final regulations could generate a net cost for small IHEs equal to
approximately 0.10 percent of annual revenue. According to data from
IPEDS, approximately 684 IHEs had total reported annual revenues of
less than $847,700 for which the costs estimated above will potentially
exceed 1 percent of total revenues. Those IHEs enrolled, on average, 60
students in 2022. For institutions of this size, it will be highly
unlikely for the recipient to conduct 6.3 investigations per year,
which represents a rate of investigations approximately 45 times higher
than all other institutions, on average. The Department therefore does
not anticipate that the final regulations will place a substantial
burden on small IHEs.
---------------------------------------------------------------------------
\125\ Based on data reported for FY 2022 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.
---------------------------------------------------------------------------
For the purpose of assessing the impacts on small entities, the
Department defines ``small LEA'' as either an LEA that is (1) a
traditional public school district located in a county with a total
population of less than 50,000, or (2) a charter school LEA. While the
Department recognizes that governance structures with respect to
traditional public school districts vary both across and within States,
the Department's definition with respect to these entities is intended
to serve as a reasonable proxy for the SBA's standard definition of a
small government entity as one with a jurisdiction of less than 50,000
people. Based on the model described in the discussion of RIA,
Developing the Model (Section 4.B), an LEA in Group A will see a net
increase in costs of approximately $2,623 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. Based on
data from NCES, the average ``small LEA,'' as defined above, had total
annual revenues of approximately $13,565,288 during the 2019-2020
academic year. As such, the Department estimates that the proposed
regulations would impose gross costs on small LEAs of approximately
0.02% of their total annual revenues. Of the small LEAs, approximately
117 reported total revenues in that year of $262,300 or less, where the
estimated costs would potentially exceed 1% of total revenues. On
average, these schools reported an enrollment of 45 students. For these
exceptionally small LEAs, it is reasonable to assume that cost
structures may be different than those estimated above in the RIA. For
LEAs of this size, it is highly unlikely for the recipient to conduct
3.6 investigations per year, which represent a rate of investigations
approximately 63 times higher than all other LEAs, on average. The
Department, therefore, does not anticipate that the final regulations
will place a substantial burden on small LEAs.
Based on the model described in the discussion of the RIA,
Developing the Model (Section 4.B), ``other'' recipients in Group A
will see a net increase in costs of approximately $3,754 per year. As
explained in the discussion of small IHEs and small LEAs, the
Department
[[Page 33881]]
notes that these estimates assume other small entities will 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 will
constitute approximately 0.08 percent of total revenues. The Department
notes that, for estimated costs to exceed 1 percent of total revenues,
``other'' recipients will need total annual revenues of less than
$375,400. Very few other recipients will fall into this category, in
part, because in FY 2023, among other recipients receiving less than
$1,000,000 in grant funds from the Department, the average grantee
received approximately $358,976 in Federal grant funds. Among those
receiving less than $500,000 in funding from the Department, the
average other recipient received approximately $245,223 in grant funds
in FY 2023. Even with very small amounts of non-Federal funding, it is
unlikely that costs of compliance with the final regulations would
exceed 1 percent of annual revenues for these recipients. The
Department, therefore, does not expect that the final regulations will
place a substantial burden on small other recipients.
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. An extension of the effective date will
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 because the final regulations are
critical to ensuring that all education programs or activities that
receive Federal funding do not discriminate based on sex. In addition,
the final regulations are more adaptable than the 2020 amendments and
will provide greater opportunities for small entities to tailor their
compliance efforts to their settings. Finally, the Department
considered proposing different requirements for smaller-sized
recipients than for mid-sized or larger ones. The Department rejects
this alternative 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 final 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 inside 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 final 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.
Executive Order 12250 on Leadership and Coordination of
Nondiscrimination Laws
Pursuant to Executive Order 12250, the President's authority under
20 U.S.C. 1682 ``relating to the approval of rules, regulations, and
orders'' implementing Title IX has been delegated to the Attorney
General. Executive Order 12250 at Sec. 1-102, 45 FR 72995 (Nov. 2,
1980). The final regulations were reviewed and approved by the Attorney
General.
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 impact of collection
requirements on respondents.
As discussed in the RIA, Cost Estimates (Section 4.C.), the
Department estimates that all regulated entities will experience an
increased recordkeeping burden under the final regulations as a result
of the changes to recordkeeping requirements in final 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 final
regulations to be a net increase of 171,024 hours.
In subsequent years, the Department estimates that the final
regulations will 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
73,506 hours. However, the Department's view is that final 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 2020 amendments; (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 2020 amendments; and (3) based upon
anecdotal reports, many recipients were already maintaining their
records related to sex discrimination. As a result, recipients falling
within one or more of these categories will experience a de minimis
increase in the number of disclosures.
[[Page 33882]]
------------------------------------------------------------------------
OMB control No. and
Regulatory section Information estimated change in
collection burden
------------------------------------------------------------------------
106.8(f).................... This regulatory OMB 1870-0505
provision requires Changes will
a recipient to increase burden
maintain certain over the first
documentation seven years by
related to Title IX $44,448,753 612,060
activities. hours.
------------------------------------------------------------------------
The Department prepared an Information Collection Request (ICR) for
this collection. This collection was identified as proposed collection
OMB control number 1870-0505.
Assessment of Educational Impact
In the July 2022 NPRM the Department requested 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. 87 FR 41566.
Based on the response to the July 2022 NPRM and on the Department's
review, the final regulations do not 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.
In the July 2022 NPRM, the Department identified specific sections
that could potentially have had federalism implications and encouraged
State and local elected officials to review and provide comments on the
proposed regulations. Id. In the preamble, the Department discusses any
comments received on this subject.
Accessible Format
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INFORMATION CONTACT, individuals with disabilities can obtain this
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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 Secretary amends
part 106 of title 34 of the Code of Federal Regulations 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 this
part; 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 or this part and who was participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged sex discrimination.
Complaint means an oral or written request to the recipient that
objectively can be understood as a request for the recipient to
investigate and make a determination about alleged discrimination under
Title IX or this part.
Confidential employee means:
(1) An employee of a recipient whose communications are privileged
or confidential under Federal or State law. The employee's confidential
status, for purposes of this part, is only with respect to information
received while the employee is functioning within the scope of their
duties to which privilege or confidentiality applies;
(2) An employee of a recipient whom the recipient has designated as
confidential under this part for the purpose of providing services to
persons related to sex discrimination. If the employee also has a duty
not associated with providing those services, the
[[Page 33883]]
employee's confidential status is only with respect to information
received about sex discrimination in connection with providing those
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 only with respect to information
received while conducting the study.
Department means the Department of Education.
Disciplinary sanctions means consequences imposed on a respondent
following a determination under Title IX 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
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 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 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 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.
Party means a complainant or respondent.
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 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
[[Page 33884]]
(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 their 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 the recipient, a student, or an
employee or other person authorized by the recipient to provide aid,
benefit, or service under the recipient's education program or
activity, 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 actions taken by a
recipient under Sec. 106.44(f)(1). Nothing in this definition or this
part precludes a recipient from requiring an employee or other person
authorized by a recipient to provide aid, benefit, or service under the
recipient's education program or activity to participate as a witness
in, or otherwise assist with, an investigation, proceeding, or hearing
under this part.
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 is a form of sex
discrimination and means sexual harassment and other harassment on the
basis of sex, including on the bases described in Sec. 106.10, 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, based on the totality of the circumstances, is subjectively and
objectively offensive and is so severe or pervasive that it limits or
denies 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
conduct;
(iv) The location of the conduct and the context in which the
conduct occurred; and
(v) Other sex-based harassment in the recipient's education program
or activity; or
(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:
(A) Who is or has been in a social relationship of a romantic or
intimate nature with the victim; and
(B) Where the existence of such a relationship shall be determined
based on a consideration of the following factors:
(1) The length of the relationship;
(2) The type of relationship; and
(3) The frequency of interaction between the persons involved in
the relationship;
(iii) Domestic violence meaning felony or misdemeanor crimes
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.
Note 1 to the definition of sex-based harassment: The Assistant
Secretary will not require a recipient to adopt a particular definition
of consent, where that term is applicable with respect to sex-based
harassment.
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).
[[Page 33885]]
Supportive measures means individualized measures offered as
appropriate, as reasonably available, without unreasonably burdening a
complainant or respondent, not for punitive or disciplinary reasons,
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 measures that are designed to
protect the safety of the parties or the recipient's educational
environment; 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, 1689),
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 Title IX and this part is not obviated or
alleviated by any State or local law or other requirement that
conflicts with Title IX or this part.
* * * * *
(e) Effect of Section 444 of General Education Provisions Act
(GEPA)/Family Educational Rights and Privacy Act (FERPA). The
obligation to comply with Title IX and this part is not obviated or
alleviated by FERPA, 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 Title IX or 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; nondiscrimination policy;
grievance procedures; notice of nondiscrimination; training; students
with disabilities; and recordkeeping.
(a) Designation of a Title IX Coordinator. (1) Title IX
Coordinator. Each recipient mustdesignate and authorize at least one
employee, referred to herein as a Title IX Coordinator, to coordinate
its efforts to comply with its responsibilities under Title IX and this
part. If a recipient has more than one Title IX Coordinator, it must
designate one of its Title IX Coordinators to retain ultimate oversight
over those responsibilities and ensure the recipient's consistent
compliance with its responsibilities under Title IX and this part.
(2) Delegation to designees. As appropriate, a recipient may
delegate, or permit a Title IX Coordinator to delegate, specific duties
to one or more designees.
(b) Adoption, publication, and implementation of nondiscrimination
policy and grievance procedures. (1) Nondiscrimination policy. Each
recipient must adopt, publish, and implement 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, publish, and
implement 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 other individuals who are participating or attempting to
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 or 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. (i) The notice of
nondiscrimination must include the following elements:
(A) 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;
(B) 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, the Office for Civil Rights, or both;
(C) The name or title, office address, email address, and telephone
number of the recipient's Title IX Coordinator;
(D) How to locate the recipient's nondiscrimination policy under
paragraph (b)(1) of this section; and the recipient's grievance
procedures under paragraph (b)(2) of this section; and
(E) How to report information about conduct that may constitute sex
discrimination under Title IX; and how to make a complaint of sex
discrimination under this part.
(ii) Nothing in this part prevents a recipient from including in
its notice of nondiscrimination information about any exceptions or
exemptions applicable to the recipient under Title IX.
(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)(A) through (E) 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)(i) of this section, the recipient may instead
include 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 provide 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
in paragraphs (d)(1) through (4) of this section receive training
related to their duties under Title IX promptly upon hiring or change
of position that alters their duties under Title IX or this part,
[[Page 33886]]
and annually thereafter. 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
Title IX and 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) and
(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 recipient
must require the Title IX Coordinator to consult with one or more
members, as appropriate, of the student's Individualized Education
Program (IEP) team, 34 CFR 300.321, if any, or one or more members, as
appropriate, of the group of persons responsible for the student's
placement decision under 34 CFR 104.35(c), if any, to determine how to
comply 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. 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 determine how to 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 notification the Title IX Coordinator receives of
information about conduct that reasonably may constitute sex
discrimination under Title IX or this part, including notifications
under Sec. 106.44(c)(1) or (2), 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 available
upon request for inspection by members of the public.
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 when some conduct alleged to be
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 in subpart B.
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 in the same manner
and under the same policies as any other temporary medical conditions;
and
(2) Must not:
(i) Adopt or implement 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;
[[Page 33887]]
(ii) Discriminate against any person on the basis of current,
potential, or past pregnancy or related conditions, or adopt or
implement any policy, practice, or procedure that so discriminates; and
(iii) Make a 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, except as permitted by 20 U.S.C.
1681(a)(1) through (9) and the corresponding regulations Sec. Sec.
106.12 through 106.15, 20 U.S.C. 1686 and its corresponding regulation
Sec. 106.32(b)(1), or Sec. 106.41(b). 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 implement 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 does not engage in
prohibited discrimination when it allows a student, based on pregnancy
or related conditions, to voluntarily participate 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) Responsibility to provide Title IX Coordinator contact and
other information. A recipient must ensure that when a student, or a
person who has a legal right to act on behalf of the student, informs
any employee of the student's pregnancy or related conditions, unless
the employee reasonably believes that the Title IX Coordinator has been
notified, the employee promptly provides that person with the Title IX
Coordinator's contact information and informs that person that the
Title IX Coordinator can coordinate specific actions to prevent sex
discrimination and ensure the student's equal access to the recipient's
education program or activity.
(3) Specific actions to prevent discrimination and ensure equal
access. A recipient must take specific actions under paragraphs
(b)(3)(i) through (vi) of this section to promptly and effectively
prevent sex discrimination and ensure 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 the student's pregnancy or related conditions. The Title
IX Coordinator must coordinate these actions.
(i) Responsibility to provide information about recipient
obligations. The recipient must inform the student, and if applicable,
the person who notified the Title IX Coordinator of the student's
pregnancy or related conditions and has a legal right to act on behalf
of the student, of the recipient's obligations under paragraphs (b)(1)
through (5) of this section and Sec. 106.44(j) and provide the
recipient's notice of nondiscrimination under Sec. 106.8(c)(1).
(ii) Reasonable modifications. (A) The recipient must make
reasonable modifications to the recipient's policies, practices, or
procedures as necessary to prevent sex discrimination and ensure equal
access to the recipient's education program or activity. Each
reasonable modification must be based on the student's individualized
needs. In determining what modifications are required under this
paragraph, the recipient must consult with the student. A modification
that a recipient can demonstrate would fundamentally alter the nature
of its education program or activity is not a reasonable modification.
(B) The student has discretion to accept or decline each reasonable
modification offered by the recipient. If a student accepts a
recipient's offered reasonable modification, the recipient must
implement it.
(C) Reasonable modifications may include, but are not limited to,
breaks during class to express breast milk, breastfeed, or attend to
health needs associated with pregnancy or related conditions, including
eating, drinking, or using the restroom; intermittent absences to
attend medical appointments; access to online or homebound education;
changes in schedule or course sequence; extensions of time for
coursework and rescheduling of tests and examinations; allowing a
student to sit or stand, or carry or keep water nearby; counseling;
changes in physical space or supplies (for example, access to a larger
desk or a footrest); elevator access; or other changes to policies,
practices, or procedures.
(iii) Voluntary access to separate and comparable portion of
program or activity. The recipient must allow the student to
voluntarily access any separate and comparable portion of the
recipient's education program or activity under paragraph (b)(1) of
this section.
(iv) Voluntary leaves of absence. The recipient must allow the
student to voluntarily take a 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 licensed healthcare
provider. To the extent that a student qualifies for leave under a
leave policy maintained by a recipient that allows a greater period of
time than the medically necessary period, the recipient must permit the
student to take voluntary leave under that policy instead if the
student so chooses. When the student returns 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 voluntary leave began.
[[Page 33888]]
(v) Lactation space. The recipient must ensure that the student can
access 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.
(vi) Limitation on supporting documentation. A recipient must not
require supporting documentation under paragraphs (b)(3)(ii) through
(v) unless the documentation is necessary and reasonable for the
recipient to determine the reasonable modifications to make or whether
to take additional specific actions under paragraphs (b)(3)(ii) through
(v). Examples of situations when requiring supporting documentation is
not necessary and reasonable include, but are not limited to, when the
student's need for a specific action under paragraphs (b)(3)(ii)
through (v) is obvious, such as when a student who is pregnant needs a
bigger uniform; when the student has previously provided the recipient
with sufficient supporting documentation; when the reasonable
modification because of pregnancy or related conditions at issue is
allowing a student to carry or keep water nearby and drink, use a
bigger desk, sit or stand, or take breaks to eat, drink, or use the
restroom; when the student has lactation needs; or when the specific
action under paragraphs (b)(3)(ii) through (v) is available to students
for reasons other than pregnancy or related conditions without
submitting supporting documentation.
(4) Comparable treatment to other temporary medical conditions. To
the extent consistent with paragraph (b)(3) of this section, a
recipient must treat pregnancy or related conditions in the same manner
and under the same policies as any other temporary medical conditions
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.
(5) Certification to participate. A recipient must not require a
student who is pregnant or has related conditions to provide
certification from a healthcare provider or any other person 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 Recipient's response to sex discrimination.
(a) General. (1) A recipient with knowledge of conduct that
reasonably may constitute sex discrimination in its education program
or activity must respond promptly and effectively; and
(2) A recipient must also comply with this section to address sex
discrimination in its education program or activity.
(b) Barriers to reporting. A recipient must require its Title IX
Coordinator to:
(1) Monitor the recipient's education program or activity for
barriers to reporting information about conduct that reasonably may
constitute sex discrimination under Title IX or this part; 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 reasonably may constitute
sex discrimination under Title IX or this part.
(2) All other recipients must, at a minimum, require:
(i) Any employee who is not a confidential employee and who either
has authority to institute corrective measures on behalf of the
recipient or 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 conduct that reasonably may constitute sex discrimination under
Title IX or this part; and
(ii) All other employees who are not confidential employees and not
covered by paragraph (c)(2)(i) of this section to either:
(A) Notify the Title IX Coordinator when the employee has
information about conduct that reasonably may constitute sex
discrimination under Title IX or this part; or
(B) Provide the contact information of the Title IX Coordinator and
information about how to make a complaint of sex discrimination to any
person who provides the employee with information about conduct that
reasonably may constitute sex discrimination under Title IX or this
part.
(3) A postsecondary institution must reasonably determine and
specify whether and under what circumstances a person who is both a
student and an employee is subject to the requirements of paragraph
(c)(2) of this section.
(4) The requirements of paragraphs (c)(1) and (2) of this section
do not apply to an employee who has personally been subject to conduct
that reasonably may constitute sex discrimination under Title IX or
this part.
(d) Confidential employee requirements. (1) A recipient must notify
all participants in the recipient's education program or activity of
how to contact its confidential employees, if any, excluding any
employee whose confidential status is only with respect to their
conducting an Institutional Review Board-approved human-subjects
research study designed to gather information about sex discrimination
as set out in the definition of confidential employee in Sec. 106.2.
(2) A recipient must require a confidential employee to explain to
any person who informs the confidential employee of conduct that
reasonably may constitute sex discrimination under Title IX or this
part:
(i) The employee's status as confidential for purposes of this
part, including the circumstances in which the employee is not required
to notify the Title IX Coordinator about conduct that reasonably may
constitute sex discrimination;
(ii) How to contact the recipient's Title IX Coordinator and how to
make a complaint of sex discrimination; and
(iii) That the Title IX Coordinator may be able to offer and
coordinate supportive measures, as well as initiate an informal
resolution process or an investigation under the grievance procedures.
(e) Public awareness events. When a postsecondary institution's
Title IX Coordinator is notified of information about conduct that
reasonably may constitute sex-based harassment under Title IX or this
part that was provided by a person during a public event to raise
awareness about sex-based harassment that was held on the postsecondary
institution's campus or through an online platform sponsored by a
postsecondary institution, the
[[Page 33889]]
postsecondary institution is not obligated to act in response to the
information, unless it indicates an imminent and serious threat to the
health or safety of a complainant, any students, employees, or other
persons. 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. Nothing in Title IX or this part
obligates a postsecondary institution to require its Title IX
Coordinator or any other employee to attend such public awareness
events.
(f) Title IX Coordinator requirements. The Title IX Coordinator is
responsible for coordinating the recipient's compliance with its
obligations under Title IX and this part.
(1) A recipient must require its Title IX Coordinator, when
notified of conduct that reasonably may constitute sex discrimination
under Title IX or this part, to take the following actions to promptly
and effectively end any sex discrimination in its education program or
activity, prevent its recurrence, and remedy its effects:
(i) Treat the complainant and respondent equitably;
(ii) Offer and coordinate supportive measures under paragraph (g)
of this section, as appropriate, for the complainant. In addition, if
the recipient has initiated grievance procedures under Sec. 106.45,
and if applicable Sec. 106.46, or offered an informal resolution
process under paragraph (k) of this section to the respondent, offer
and coordinate supportive measures under paragraph (g) of this section,
as appropriate, for the respondent;
(iii)(A) Notify the complainant or, if the complainant is unknown,
the individual who reported the conduct, of the grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46, and the informal
resolution process under paragraph (k) of this section, if available
and appropriate; and
(B) If a complaint is made, notify the respondent of the grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, and the
informal resolution process under paragraph (k) of this section, if
available and appropriate;
(iv) In response to a complaint, initiate the grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46, or the informal
resolution process under paragraph (k) of this section, if available
and appropriate and requested by all parties;
(v) In the absence of a complaint or the withdrawal of any or all
of the allegations in a complaint, and in the absence or termination of
an 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.
(A) To make this fact-specific determination, the Title IX
Coordinator must consider, at a minimum, the following factors:
(1) The complainant's request not to proceed with initiation of a
complaint;
(2) The complainant's reasonable safety concerns regarding
initiation of a complaint;
(3) The risk that additional acts of sex discrimination would occur
if a complaint is not initiated;
(4) The severity of the alleged sex discrimination, including
whether the discrimination, if established, would require the removal
of a respondent from campus or imposition of another disciplinary
sanction to end the discrimination and prevent its recurrence;
(5) The age and relationship of the parties, including whether the
respondent is an employee of the recipient;
(6) The scope of the alleged sex discrimination, including
information suggesting a pattern, ongoing sex discrimination, or sex
discrimination alleged to have impacted multiple individuals;
(7) The availability of evidence to assist a decisionmaker in
determining whether sex discrimination occurred; and
(8) Whether the recipient could end the alleged sex discrimination
and prevent its recurrence without initiating its grievance procedures
under Sec. 106.45, and if applicable Sec. 106.46.
(B) If, after considering these and other relevant factors, the
Title IX Coordinator determines that the conduct as alleged presents an
imminent and serious threat to the health or safety of the complainant
or other person, or that the conduct as alleged prevents the recipient
from ensuring equal access on the basis of sex to its education program
or activity, the Title IX Coordinator may initiate a complaint.
(vi) If initiating a complaint under paragraph (f)(1)(v) of this
section, notify the complainant prior to doing so and appropriately
address reasonable concerns about the complainant's safety or the
safety of others, including by providing supportive measures consistent
with paragraph (g) of this section; and
(vii) Regardless of whether a complaint is initiated, take other
appropriate prompt and effective steps, in addition to steps necessary
to effectuate the remedies provided to an individual complainant, if
any, to ensure that sex discrimination does not continue or recur
within the recipient's education program or activity.
(2) A Title IX Coordinator is not required to comply with
paragraphs (f)(1)(i) through (vii) of this section upon being notified
of conduct that may constitute sex discrimination if the Title IX
Coordinator reasonably determines that the conduct as alleged could not
constitute sex discrimination under Title IX or this part.
(g) Supportive measures. Under paragraph (f) of this section, a
recipient must offer and coordinate supportive measures, as
appropriate, as described in paragraphs (g)(1) through (6) of this
section. For allegations of sex discrimination other than sex-based
harassment or retaliation, a recipient's provision of supportive
measures does not require the recipient, its employee, or any other
person authorized to provide aid, benefit, or service on the
recipient's behalf to alter the alleged discriminatory conduct for the
purpose of providing a supportive measure.
(1) Supportive measures may vary depending on what the recipient
deems to be reasonably available. 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
applied to one or more parties; leaves of absence; 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 must not unreasonably burden either party
and must be designed to protect the safety of the parties or the
recipient's educational environment, or to 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). A recipient must not impose such measures for punitive or
disciplinary reasons.
(3) 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
[[Page 33890]]
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 with a
timely opportunity to seek, from an appropriate and impartial employee,
modification or reversal of the recipient's decision to provide, deny,
modify, or terminate supportive measures applicable to them. The
impartial employee must be someone other than the employee who made the
challenged decision and must have authority to modify or reverse the
decision, if the impartial employee determines that the decision to
provide, deny, modify, or terminate the supportive measure was
inconsistent with the definition of supportive measures in Sec. 106.2.
A recipient must also provide a party with the opportunity to seek
additional modification or termination of a supportive measure
applicable to them if circumstances change materially.
(5) A recipient must not disclose information about any supportive
measures to persons other than the person to whom they apply, including
informing one party of supportive measures provided to another party,
unless necessary to provide the supportive measure or restore or
preserve a party's access to the education program or activity, or when
an exception in Sec. 106.44(j)(1) through (5) applies.
(6)(i) If the complainant or respondent is an elementary or
secondary student with a disability, the recipient must require the
Title IX Coordinator to consult with one or more members, as
appropriate, of the student's Individualized Education Program (IEP)
team, 34 CFR 300.321, if any, or one or more members, as appropriate,
of the group of persons responsible for the student's placement
decision under 34 CFR 104.35(c), if any, to determine how to comply
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 support to students with disabilities to
determine how to comply 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 imminent
and serious threat to the health or safety of a complainant or any
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 the Americans with Disabilities Act of 1990, 42 U.S.C.
12101 et seq.
(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 the Americans with Disabilities Act of 1990, 42 U.S.C.
12101 et seq.
(j) Prohibited disclosures of personally identifiable information.
A recipient must not disclose personally identifiable information
obtained in the course of complying with this part, except in the
following circumstances:
(1) When the recipient has obtained prior written consent from a
person with the legal right to consent to the disclosure;
(2) When the information is disclosed to a parent, guardian, or
other authorized legal representative with the legal right to receive
disclosures on behalf of the person whose personally identifiable
information is at issue;
(3) To carry out the purposes of this part, including action taken
to address conduct that reasonably may constitute sex discrimination
under Title IX in the recipient's education program or activity;
(4) As required by Federal law, Federal regulations, or the terms
and conditions of a Federal award, including a grant award or other
funding agreement; or
(5) To the extent such disclosures are not otherwise in conflict
with Title IX or this part, when required by State or local law or when
permitted under FERPA, 20 U.S.C. 1232g, or its implementing
regulations, 34 CFR part 99.
(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 the complaint includes allegations that an
employee engaged in sex-based harassment of an elementary school or
secondary school 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) Subject to the limitations in paragraph (k)(1) of this section,
a recipient has discretion to determine whether it is appropriate to
offer an informal resolution process when it receives information about
conduct that reasonably may constitute sex discrimination under Title
IX or this part or when a complaint of sex discrimination is made, and
may decline to offer informal resolution despite one or more of the
parties' wishes.
(ii) In addition to the limitations in paragraph (k)(1) of this
section, 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 determination 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
[[Page 33891]]
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, including notice that an informal
resolution agreement is binding only on the parties; and
(vi) What information the recipient will maintain and whether and
how the recipient could disclose such information for use in grievance
procedures under Sec. 106.45, and if applicable Sec. 106.46, if
grievance procedures are initiated or resumed.
(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 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 at the
conclusion of the recipient's grievance procedures that sex
discrimination occurred.
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. A recipient's grievance procedures for the prompt
and equitable resolution of complaints of sex discrimination 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.
(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 investigate and make a
determination about alleged discrimination under Title IX or this part:
(i) A complainant;
(ii) A parent, guardian, or other authorized legal representative
with the legal right to act on behalf of a complainant;
(iii) The Title IX Coordinator, after making the determination
specified in Sec. 106.44(f)(1)(v);
(iv) With respect to complaints of sex discrimination other than
sex-based harassment, in addition to the persons listed in paragraphs
(a)(2)(i) through (iii) of this section,
(A) Any student or employee; or
(B) Any person other than a student or employee who was
participating or attempting to participate in the recipient's education
program or activity at the time of the alleged sex discrimination.
(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 sex discrimination until a determination 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 decision whether to dismiss or investigate a complaint of
sex discrimination); investigation; determination; and appeal, if any;
(5) Require the recipient to 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 their family members, confidential resources, or advisors; or
otherwise prepare for or participate in the grievance procedures;
(6) Require an objective evaluation of all evidence that is
relevant, as defined in Sec. 106.2, and not otherwise impermissible
under paragraph (b)(7) of this section--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;
(7) Exclude the following types of evidence, and questions seeking
that evidence, as impermissible (i.e., must not be accessed or
considered, except by the recipient to determine whether an exception
in paragraphs (i) through (iii) applies; must not be disclosed; and
must not otherwise be used), regardless of whether they are relevant:
(i) Evidence that is protected under a privilege as recognized by
Federal or State law or evidence provided to a confidential employee,
unless the person to whom the privilege or confidentiality is owed has
voluntarily waived the privilege or confidentiality;
(ii) A party's or witness'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 or witness, unless the recipient obtains that party's or
witness'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 evidence about specific
incidents of the complainant's prior sexual conduct with the respondent
that is offered to prove consent to the alleged sex-based harassment.
The fact of prior consensual sexual conduct between the complainant and
respondent does not by itself demonstrate or imply the complainant's
consent to the alleged sex-based harassment or preclude determination
that sex-based harassment occurred; and
(8) If a recipient adopts grievance procedures that apply to the
resolution of some, but not all, complaints articulate consistent
principles for how the recipient will determine which procedures apply.
(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
[[Page 33892]]
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(s), the conduct
alleged to constitute sex discrimination under Title IX or this part,
and the date(s) and location(s) of the alleged incident(s), to the
extent that information is available to the recipient;
(iii) A statement that retaliation is prohibited; and
(iv) A statement that the parties are entitled to an equal
opportunity to access the relevant and not otherwise impermissible
evidence or an accurate description of this evidence as set out in
paragraph (f)(4) of this section; and if the recipient provides a
description of the evidence, the parties are entitled to an equal
opportunity to access to the relevant and not otherwise impermissible
evidence upon the request of any party.
(2) If, in the course of an investigation, the recipient decides to
investigate additional allegations of sex discrimination by the
respondent toward the complainant that are not included in the notice
provided under paragraph (c) 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, the Title IX Coordinator declines to
initiate a complaint under Sec. 106.44(f)(1)(v), and the recipient
determines that, without the complainant's withdrawn allegations, the
conduct that remains alleged in the complaint, if any, would not
constitute sex discrimination under Title IX or this part 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
or this part. 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 the complainant that a dismissal may be
appealed and provide the complainant with an opportunity to appeal the
dismissal of a complaint on the bases set out in Sec. 106.46(i)(1). If
the dismissal occurs after the respondent has been notified of the
allegations, then the recipient must also notify the respondent that
the dismissal may be appealed on the bases set out in Sec.
106.46(i)(1). If the dismissal is appealed, the recipient must:
(i) Notify the parties of any appeal, including notice of the
allegations consistent with paragraph (c) of this section if notice was
not previously provided to the respondent;
(ii) Implement appeal procedures equally for the parties;
(iii) Ensure that the decisionmaker for the appeal did not take
part in an investigation of the allegations or dismissal of the
complaint;
(iv) Ensure that the decisionmaker for the appeal has been trained
as set out in Sec. 106.8(d)(2);
(v) Provide the parties a reasonable and equal opportunity to make
a statement in support of, or challenging, the outcome; and
(vi) Notify the 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 paragraph (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)(1)(vii).
(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 Sec.
106.46 in addition to the requirements of this section. 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 fact
witnesses and other inculpatory and exculpatory evidence that are
relevant and not otherwise impermissible;
(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 an equal opportunity to access the
evidence that is relevant to the allegations of sex discrimination and
not otherwise impermissible, consistent with Sec. 106.2 and with
paragraph (b)(7) of this section, in the following manner:
(i) A recipient must provide an equal opportunity to access either
the relevant and not otherwise impermissible evidence, or an accurate
description of this evidence. If the recipient provides a description
of the evidence, it must further provide the parties with an equal
opportunity to access the relevant and not otherwise impermissible
evidence upon the request of any party;
(ii) A recipient must provide a reasonable opportunity to respond
to the evidence or to the accurate description of the evidence
described in paragraph (f)(4)(i) of this section; and
(iii) A recipient must take reasonable steps to prevent and address
the parties' unauthorized disclosure of information and evidence
obtained solely through the grievance procedures. For purposes
[[Page 33893]]
of this paragraph, disclosures of such information and evidence for
purposes of administrative proceedings or litigation related to the
complaint of sex discrimination are authorized.
(g) Questioning parties and witnesses to aid in evaluating
allegations and assessing credibility. A recipient must provide a
process that enables the decisionmaker to question parties and
witnesses to adequately assess a party's or witness's credibility to
the extent credibility is both in dispute and relevant to evaluating
one or more allegations of sex discrimination.
(h) Determination whether sex discrimination occurred. Following an
investigation and evaluation of all relevant and not otherwise
impermissible evidence 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 and not otherwise impermissible 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 must not
determine that sex discrimination occurred.
(2) Notify the parties in writing of the determination whether sex
discrimination occurred under Title IX or this part including the
rationale for such determination, 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 coordinate the
provision and implementation of remedies to a complainant and other
persons the recipient identifies as having had equal access to the
recipient's education program or activity limited or denied by sex
discrimination, coordinate the imposition of any disciplinary sanctions
on a respondent, including notification to the complainant of any such
disciplinary sanctions, 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)(1)(vii). A
recipient may not impose discipline on a respondent for sex
discrimination prohibited by Title IX unless there is a determination
at the conclusion of the recipient's grievance procedures that the
respondent engaged in prohibited sex discrimination;
(4) Comply with Sec. 106.45, 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 whether sex discrimination occurred.
(i) Appeals. In addition to an appeal of a dismissal consistent
with paragraph (d)(3) of this section, a recipient must offer the
parties an appeal process that, at a minimum, is the same as it offers
in all other comparable proceedings, if any, including proceedings
relating to other discrimination complaints. For a complaint of sex-
based harassment involving a student complainant or student respondent,
a postsecondary institution must also offer an appeal on the bases set
out in Sec. 106.46(i)(1).
(j) 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.
(k) 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.
(l) 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) List, or describe the range of, the possible disciplinary
sanctions that the recipient may impose and remedies that the recipient
may provide following a determination that sex-based harassment
occurred.
Sec. 106.46 [Redesignated as Sec. 106.48]
0
20. Section 106.46 is redesignated as Sec. 106.48 in subpart D.
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 written grievance
procedures for prompt and equitable resolution of 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. 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 with sufficient time
for the parties to prepare a response before any initial interview.
(1) The written notice must include all information required under
Sec. 106.45(c)(1)(i) through (iii) and also inform the parties that:
(i) The respondent is presumed not responsible for the alleged sex-
based harassment until a determination 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
and not otherwise impermissible 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 an equal opportunity to access the
relevant and not otherwise impermissible evidence or an investigative
report that accurately summarizes this evidence as set out in paragraph
(e)(6) of this section; and if the postsecondary institution provides
access to an investigative report, the parties are entitled to an equal
opportunity to access to the relevant and not otherwise impermissible
[[Page 33894]]
evidence upon the request of any party; and
(iv) If applicable, the postsecondary institution's code of conduct
prohibits knowingly making false statements or knowingly submitting
false information during the grievance procedure.
(2) If, in the course of an investigation, the recipient decides to
investigate additional allegations of sex-based harassment by the
respondent toward the complainant that are not included in the written
notice provided under paragraph (c) of this section or that are
included in a complaint that is consolidated under Sec. 106.45(e), the
recipient must provide written notice of the additional allegations to
the parties whose identities are known.
(3) To the extent the postsecondary institution has reasonable
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. Reasonable 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 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), except if the dismissal
occurs before the respondent has been notified of the allegations, in
which case the recipient must provide such written notice only to the
complainant; 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 or proceedings 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 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
an equal opportunity to access 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 an equal opportunity
to access either the relevant and not otherwise impermissible evidence,
or the same written investigative report that accurately summarizes
this evidence. If the postsecondary institution provides access to an
investigative report, it must further provide the parties with an equal
opportunity to access 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 or the
investigative report described in paragraph (e)(6)(i) of this section
prior to the determination 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. For purposes of this paragraph,
disclosures of such information and evidence for purposes of
administrative proceedings or litigation related to the complaint of
sex-based harassment are authorized; and
(iv) Compliance with paragraph (e)(6) of this section satisfies the
requirements of Sec. 106.45(f)(4).
(f) Questioning parties and witnesses to aid in evaluating
allegations and assessing credibility. (1) Process for questioning
parties and witnesses. A postsecondary institution must provide a
process as specified in this subpart that enables the decisionmaker to
question parties and witnesses to adequately assess a party's or
witness's credibility to the extent credibility is both in dispute and
relevant to evaluating one or more allegations of sex-based harassment.
Questioning of the parties and witnesses must take place consistent
with the following provisions before determining whether sex-based
harassment occurred:
(i) When a postsecondary institution chooses not to conduct a live
hearing under paragraph (g) of this section, the process for proposing
and asking relevant and not otherwise impermissible questions and
follow-up questions of parties and witnesses under Sec. Sec. 106.2 and
106.45(b)(7), including questions challenging credibility, must:
(A) Allow the investigator or decisionmaker to ask such questions
during individual meetings with a party or witness;
(B) Allow each party to propose such questions that the party wants
asked of any party or witness and have those questions asked by the
investigator or decisionmaker during one or more individual meetings,
including follow-up meetings, with a party or witness, subject to the
requirements in paragraph (f)(3) of this section; and
(C) Provide each party with an audio or audiovisual recording or
transcript with enough time for the party to have a reasonable
opportunity to propose follow-up questions.
(ii) When a postsecondary institution chooses to conduct a live
hearing under paragraph (g) of this section, the process for proposing
and asking relevant and not otherwise impermissible questions and
follow-up questions of parties and witnesses under Sec. Sec. 106.2 and
106.45(b)(7), including questions challenging credibility, must allow
the decisionmaker to ask such questions, and either:
(A) Allow each party to propose such questions that the party wants
asked of any party or witness and have those questions asked by the
decisionmaker,
[[Page 33895]]
subject to the requirements under paragraph (f)(3) of this section; or
(B) Allow each party's advisor to ask any party or witness such
questions, 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 to 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-conducted questioning. In those
instances, the postsecondary institution must not appoint a
confidential employee and may appoint, but is not required to appoint,
an attorney to serve as an advisor.
(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 under Sec. 106.2 and not otherwise
impermissible under Sec. 106.45(b)(7), prior to the question being
posed, and must explain any decision to exclude a question as not
relevant or otherwise impermissible. If a decisionmaker determines that
a party's question is relevant and not otherwise impermissible, then
the question must be asked except that a postsecondary institution must
not permit questions that are unclear or harassing of the party or
witness being questioned. The decisionmaker must give a party an
opportunity to clarify or revise a question that the decisionmaker has
determined is unclear or harassing and, if the party sufficiently
clarifies or revises a question to satisfy the terms of this paragraph,
the question must be asked. A postsecondary institution may also adopt
and apply other reasonable rules regarding decorum, provided they apply
equally to the parties.
(4) Refusal to respond to questions and inferences based on refusal
to respond to questions. A decisionmaker may choose to place less or no
weight upon statements by a party or witness who refuses to respond to
questions deemed relevant and not impermissible. 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 to such questions.
(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. At the postsecondary
institution's discretion the institution may, or upon the request of
either party it must, 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. 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 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 and not
otherwise impermissible evidence and determination 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, 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 any appeal, or, if no
party appeals, 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 whether 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 outcome;
(ii) New evidence that would change the outcome and that was not
reasonably available when the determination 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.
(2) A postsecondary institution may offer an appeal to the parties
on additional bases, so long as the procedures and additional bases for
appeal are equally available to all parties.
(3) As to all appeals, the postsecondary institution must comply
with the requirements in Sec. 106.45(d)(3)(i), (v), and (vi) 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 in a particular complaint alleging sex-based
harassment than a recipient reached under Sec. 106.45, and if
applicable Sec. 106.46, based on the Assistant Secretary's independent
weighing of the evidence.
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;
* * * * *
[[Page 33896]]
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 must not adopt or implement 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) That 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 must not
discriminate against any employee or applicant for employment on the
basis of current, potential, or past pregnancy or related conditions.
(c) Comparable treatment to other temporary medical conditions. A
recipient must treat pregnancy or related conditions as any other
temporary medical conditions 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) Voluntary leaves of absence. 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 must 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 that an employee can access 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 a 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 Title IX or this part.
0
26. Section 106.71 is revised to read as follows:
Sec. 106.71 Retaliation.
A recipient must prohibit retaliation, including peer retaliation,
in its education program or activity. When a recipient has information
about conduct that reasonably may constitute retaliation under Title IX
or this part, the recipient is obligated to comply with Sec. 106.44.
Upon receiving a complaint alleging retaliation, a recipient must
initiate its grievance procedures under Sec. 106.45, or, as
appropriate, an informal resolution process under Sec. 106.44(k). 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 both Sec. Sec. 106.45 and 106.46.
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 through 100.11 and 34 CFR part
101.
[FR Doc. 2024-07915 Filed 4-19-24; 8:45 am]
BILLING CODE 4000-01-P