[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)

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    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.

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

[[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

[[Page 33546]]

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

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

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

    \37\ See 8 CFR 214.3(l)(1).
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

    \50\ One commenter cited N.Y. Educ. Law Sec.  6444(5)(c)(vi).
---------------------------------------------------------------------------

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

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

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

    \60\ The comments, discussion, and changes for Sec.  106.46(a) 
are included in the section on Sec.  106.45(a)(1).
---------------------------------------------------------------------------

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

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

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

    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\
---------------------------------------------------------------------------

    \74\ As stated in Haidak, there is generally no right to counsel 
in disciplinary proceedings. 933 F.3d at 69.
---------------------------------------------------------------------------

    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

[[Page 33739]]

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

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

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

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

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

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

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

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

    On request to the program contact person listed under FOR FURTHER 
INFORMATION CONTACT, individuals with disabilities can obtain this 
document in an accessible format. The Department will provide the 
requestor with an accessible format that may include Rich Text Format 
(RTF) or text format (txt), a thumb drive, an MP3 file, braille, large 
print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document

    You may access the official edition of the Federal Register and the 
Code of Federal Regulations at www.govinfo.gov. At this site you can 
view this document, as well as all other documents of this Department 
published in the Federal Register, in text or Adobe Portable Document 
Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is 
available free at the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

List of Subjects in 34 CFR Part 106

    Civil rights, Education, Sex discrimination, Youth organizations.

Miguel A. Cardona,
Secretary of Education.

    For the reasons discussed in the preamble, the 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